OR Dep't of Fish and Wildlife v. Crook County

A plan with unknown off-site locations for conservation efforts which are not owned in fee is not a reliable “no net loss” mitigation policy under OAR 635-415-0025.

Petitioner, OR Dep’t of Fish and Wildlife (ODFW), appealed a Crook County court decision approving intervenor-respondent West Prineville Solar Farm LLC’s (Solar Farm) modification of a previously issued conditional use permit for a solar facility arguing that the mitigation plan would not result in “no net loss” of habitat quantity or quality. The project expanding the facility falls within the Mitigation Policy under OAR 6350415-0025(4) requiring “no net loss.” Solar Farm’s mitigation plan (V2 Plan) consists of Option 1 (off-site juniper removal) or Option 2 (one-time payment to a land trust in the county), with the final mitigation plan to be decided in the future by Solar Farm.

A mitigation plan requires “specificity and definiteness,” a reliable means of mitigation throughout the entire life of the project, and “a schedule of performance measures.” ODFW v. Crook County, 315 Or App 625, 644 (2021). ODFW argued that the V2 Plan is not a “mitigation plan” within the meaning of OAR 635-415-0005(18) and therefore substantial evidence does not support the County’s decision to approve the permit modification. The County responded that the V2 Plan is detailed enough for them to have reasonably concluded the project would result in “no net loss,” as it broadly includes ODFW’s recommendations for “type, amount, scale, and location of mitigation.” Siding with ODFW, LUBA reasoned that because the V2 Plan lacks specificity as to the location of the off-site mitigation, it is not a “mitigation plan” within the meaning of the rule. Further, because the V2 Plan includes no set location or proof of fee ownership, LUBA found no showing of a reliable means of mitigation throughout the 40-year life of the solar facility.

ODFW also argued the V2 Plan unlawfully defers a compliance determination to a future proceeding without the required public process as defined in Gould v. Deschutes County, 216 Or App 150 (2007). Gould holds that final adoption of a mitigation plan must be based on evidence in the land use record. Id. at 159-160. Solar Farm argued the V2 Plan does not defer a determination as to its compliance with the Mitigation Policy because the V2 Plan requires notice to the county of which mitigation option (Option 1 or Option 2) is selected prior to project construction. LUBA sided with Solar Farm, explaining that notifying the county of the chosen mitigation option results from mitigation plans already found in the land use record and approved by the public participatory process.