Oregon's House Bill 2820 provides a much-needed clarification of the Energy Facility Siting Council's ("EFSC's") jurisdiction over the siting of solar photovoltaic (PV) power generation facilities.  Prior to the passage of HB 2820, the definition of “energy facility” provided two hooks for EFSC to assert jurisdiction over a solar power generation facility: (1) under ORS 469.300(11)(J), a solar facility could fall within EFSC’s jurisdiction if it had an average electric generating capacity of 35 megawatts (MW) or more (e.g., 105 MW nominal generating capacity) or (2) under ORS 469.300(11)(D), EFSC would have jurisdiction if the facility occupied more than 100 acres of land. 

The two definitions presented a potential problem for future solar development in Oregon, given that 105 MW seemed incredibly high and that 100 acres seemed restrictively low, especially if EFSC was going to interpret the statutory language of “solar collecting facility” as capturing not only solar thermal but also solar PV facilities. Although it has not been a problem in practice (because EFSC has yet to permit a solar facility), it is nice to see that the permitting pathway is clear for solar development here in Oregon.   

Under ORS 469.300(11), as amended by HB 2820, EFSC now has jurisdiction over the following solar facilities:

  • Solar thermal power plants;
  • Solar PV power generation facilities on 100 acres or more of high-value farmland;
  • Solar PV power generation facilities on 100 acres or more of land “predominately cultivated or … if not cultivated, … predominately composed of soils that are in the capability classes I to IV”; and
  • Solar PV power generation facilities on 320 acres or more of any other type of land.