Dept. of Fish and Wildlife v. Crook County ( 2021 )

625
Argued and submitted August 20, reversed and remanded November 17, 2021
OREGON DEPARTMENT
OF FISH AND WILDLIFE,
Respondent,
v.
CROOK COUNTY
and West Prineville Solar Farm, LLC,
Petitioners.
Land Use Board of Appeals
2020114; A176344
504 P3d 68
Petitioners West Prineville Solar Farm LLC (Solar Farm) and Crook County
seek judicial review of an order of the Land Use Board of Appeals (LUBA) that
remands to Crook County its decision approving Solar Farm’s application made
under ORS 215.446 for a midsize solar facility. Petitioners assert that LUBA mis-
construed what ORS 215.446 requires by concluding that a mitigation plan must
include submittal requirements set out in OAR 635-415-0020(8). Respondent
Oregon Department of Fish and Wildlife (ODFW) argues that the text of ORS
215.446 requires that all the rules of its mitigation policy, including OAR 635-
415-0020(8), apply to mitigation plans. Held: Counties approve applications made
under ORS 215.446 and, because OAR 635-415-0020(8) concerns ODFW’s own
approval process, LUBA erred in concluding that Solar Farm’s mitigation plan
must include OAR 635-415-0020(8)’s submittal requirements.
Reversed and remanded.
John R. Eisler argued the cause and filed the brief for
petitioner Crook County.
Merissa A. Moeller argued the cause for petitioner West
Prineville Solar Farm, LLC. Also on the brief were Timothy
L. McMahan, Crystal S. Chase, Max M. Yoklic, and Stoel
Rives LLP.
Denise G. Fjordbeck, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
John Maxwell Greene filed the brief amicus curiae for
Renewable Northwest.
626 Dept. of Fish and Wildlife v. Crook County
Damien R. Hall and Ball Janik LLP, and Elaine R. Albrich
and Davis Wright Tremaine LLP filed the brief amicus cur-
iae for Oregon Solar Energy Industries Association.
Ellen H. Grover, Megan K. Beshai, and Karnopp Petersen
LLP filed the brief amicus curiae for Community Renewable
Energy Association.
Before Tookey, Presiding Judge, and James, Judge, and
Aoyagi, Judge.
JAMES, J.
Reversed and remanded.
Cite as 315 Or App 625 (2021) 627
JAMES, J.
Petitioner West Prineville Solar Farm, LLC (Solar
Farm) applied to petitioner Crook County for approval of a
modification to an existing conditional use permit (CUP) for
a solar photovoltaic facility, seeking to increase the facility
size from 320 acres to 654 acres on nonarable land. Solar
Farm’s permit-modification application was made under
ORS 215.446, which is a recently enacted statute that pro-
vides standards regarding wildlife mitigation for counties
to apply when determining whether to authorize midsize
solar facilities, i.e., solar facilities sized between 321 acres
and 1,920 acres. Crook County approved the application, but
the Oregon Department of Fish and Wildlife (ODFW or the
department) appealed that decision to the Land Use Board
of Appeals (LUBA), contending that Solar Farm failed to
include in its mitigation plan information called for in OAR
635-415-0020(8). LUBA agreed with ODFW, and petition-
ers assert on judicial review that LUBA misconstrued what
ORS 215.446 requires by concluding that it requires a mit-
igation plan to include the OAR 635-415-0020(8) submittal
requirements. We agree with petitioners that LUBA erred
in its construction of ORS 215.446. With a construction of
ORS 215.446 that correctly reflects the legislature’s intent,
we reverse and remand the matter to LUBA.
BACKGROUND AND PROCEDURAL HISTORY
Legal Framework. In 2019, the legislature passed
House Bill (HB) 2329, which was codified as ORS 215.446.
Or Laws 2019, ch 650, § 4.1 ORS 215.446 provides standards
for applicants seeking to develop midsize renewable energy
facilities. Generally speaking, midsize renewable energy
facilities are solar facilities that use a certain number of
acres, depending on the type of land on which the applicant
seeks to build, or geothermal or wind energy generation
facilities that have a certain megawatt generating capacity.
ORS 215.446(1)(c). As relevant here, an applicant seeking to
develop a solar facility on nonarable land can avail itself of
the application process under ORS 215.446 for sites that use
1
The definitional section of ORS 215.446 was amended in 2021, Or Laws
2021, ch 60, § 1, but the changes are not relevant to the issues here and we use
the current version of the statute.
628 Dept. of Fish and Wildlife v. Crook County
more than 320 acres but not more than 1,920 acres. ORS
215.446(1)(c)(A)(iii).
Before ORS 215.446 was enacted, the Energy
Facility Siting Council (EFSC) was solely responsible for
permitting solar energy facilities that use more than 320
acres of nonarable land. ORS 469.300 (2019), amended by Or
Laws 2019, ch 650, § 1. The renewable energy industry did
not consider it financially feasible to develop midsize renew-
able energy facilities under the EFSC permitting process,
which in their view is lengthy, cumbersome, and expensive.
See, e.g., Audio Recording, Joint Subcommittee on Natural
Resources, HB 2329, June 10, 2019, at 38:42 (comments
of Morrow County representative Don Russell, https://
olis.oregonlegislature.gov (accessed Nov 12, 2021)). The
industry was familiar with developing smaller scale solar
facilities—320 acres or less—through a process in which
counties were the permitting authority, and HB 2329 was
advanced as an approach that would allow counties the
authority to permit midsize renewable energy facilities. Yet,
as it was for the EFSC permitting process, ODFW would
have a role regarding protections for wildlife.
That desire for a faster and more responsive per-
mitting process is embodied in subsections (2) and (3) of
ORS 215.446:
“(2) An application for a land use permit to estab-
lish a renewable energy facility must be made under ORS
215.416. An applicant must demonstrate to the satisfaction
of the county that the renewable energy facility meets the
standards under subsection (3) of this section.
“(3) In order to issue a permit, the county shall require
that the applicant:
“(a)(A) Consult with the State Department of Fish
and Wildlife, prior to submitting a final application to the
county, regarding fish and wildlife habitat impacts and any
mitigation plan that is necessary;
“(B) Conduct a habitat assessment of the proposed
development site;
“(C) Develop a mitigation plan to address signifi-
cant fish and wildlife habitat impacts consistent with
Cite as 315 Or App 625 (2021) 629
the administrative rules adopted by the State Fish and
Wildlife Commission for the purposes of implementing
ORS 496.012; and
“(D) Follow administrative rules adopted by the State
Fish and Wildlife Commission and rules adopted by the
Land Conservation and Development Commission to imple-
ment the Oregon Sage-Grouse Action Plan and Executive
Order 15-18.”
Hence, in enacting ORS 215.446, the legislature
placed in the hands of counties an alternative permitting
process for proposed midsize solar facilities. Developers can
still seek permitting for midsize solar facilities under the
EFSC process. ORS 215.446(2). Under ORS 215.416, a county
must approve permits that fit within the county’s compre-
hensive plan and zoning ordinances. ORS 215.416(4)(a).
Moreover, a county has 150 days from the completion of
an application to make its determination. ORS 215.427(1).
Typically, permitting by EFSC takes much longer.
As for mitigation of impacts to wildlife, an applicant
seeking a solar facility permit under ORS 215.446 must do
three things: (1) consult with ODFW about the impacts the
proposed site will have on fish and wildlife, and if neces-
sary, develop a mitigation plan; (2) conduct a habitat assess-
ment; and (3) “[d]evelop a mitigation plan to address sig-
nificant fish and wildlife habitat impacts consistent with
the administrative rules adopted by the State Fish and
Wildlife Commission for the purposes of implementing ORS
496.012.”2
ORS 496.012, also known as the state’s Wildlife
Policy, declares that “wildlife shall be managed to prevent
serious depletion of any indigenous species and to provide the
optimum recreational and aesthetic benefits for present and
future generations of the citizens of this state.” To advance
the Wildlife Policy, the Fish and Wildlife Commission has
adopted rules, chapter 635, division 415, which are known
as ODFW’s Mitigation Policy. See OAR 635-415-0000 (“The
purpose of these rules is to further the Wildlife Policy (ORS
496.012) * * * of the State of Oregon through the application
2
If sage grouse are involved, ORS 215.446(3)(a)(D), an applicant must do a
fourth thing.
630 Dept. of Fish and Wildlife v. Crook County
of consistent goals and standards to mitigate impacts to fish
and wildlife habitat caused by land and water development
actions.”); OAR 635-415-0010 (“It is the fish and wildlife
habitat mitigation policy of the Oregon Department of Fish
and Wildlife to require or recommend, depending upon the
habitat protection and mitigation opportunities provided by
specific statutes, mitigation for losses of fish and wildlife
habitat resulting from development actions.”).
Two of the Mitigation Policy’s rules in particular
are implicated here: OAR 635-415-0025 and OAR 635-415-
0020. OAR 635-415-0025 sets out six habitat categories,
with “Habitat Category 1” as the most protective category
(for irreplaceable and essential habitat, the mitigation goal
is no loss of habitat) and “Habitat Category 6” as the least
protective (habitat that has low potential to become essen-
tial habitat for wildlife and where the mitigation goal is to
minimize impacts to wildlife). Habitat Categories 3 and 4
are habitats that are essential or important for wildlife.3 For
both habitat categories, ODFW must act to achieve the mit-
igation goals by “recommending or requiring”:
“(A) Avoidance of impacts through alternatives to the
proposed development action; or
“(B) Mitigation of impacts, if unavoidable, through reli-
able in-kind,[4] in-proximity habitat mitigation to achieve
no net loss in either pre-development habitat quantity or
quality. Progress towards achieving the mitigation goals
and standards shall be reported on a schedule agreed to in
the mitigation plan performance measures. The fish and
wildlife mitigation measures shall be implemented and
completed either prior to or concurrent with the develop-
ment action.”
OAR 635-415-0025(4). That is, Habitat Categories 3 and 4
have mitigation goals of “no net loss” of habitat.5
3
ODFW has the view that Habitat Categories 3 and 4 apply to the proposed
site. West Prineville agrees that Habitat Category 4 applies. In any event, all
parties agree that the applicable mitigation standard is achieving “no net loss” of
habitat.
4
“Out-of-kind” or “off-proximity” mitigation is not permitted for Habitat
Category 3.
5
“Net Loss” means “a loss of habitat quantity and/or habitat quality result-
ing from a development action despite mitigation measures having been taken.”
OAR 635-415-0005(22).
Cite as 315 Or App 625 (2021) 631
OAR 635-415-0020 begins by describing the actions
that ODFW is authorized to undertake. For ODFW’s own
development actions that impact fish and wildlife habitat,
the department must “provide mitigation consistent with
the goals and standards of OAR 635-415-0025.” OAR 635-
415-0020(1) (emphasis added). For instances when ODFW
has “statutory authority to require mitigation as a condi-
tion of a permit or order,” the department must “require
mitigation consistent with the goals and standards of OAR
635-415-0025.” OAR 635-415-0020(2) (emphasis added). For
“other than” ODFW actions, when “[f]ederal or state envi-
ronmental laws or land use regulations authorize or require
mitigation for impacts to fish and wildlife,” the department
must “recommend mitigation consistent with the goals and
standards of OAR 635-415-0025.” OAR 635-415-0020(3)(a)
(emphasis added).
Depending on what ODFW is authorized by stat-
ute to do, it may recommend or require mitigation of hab-
itat impacts of a development action based on a number of
considerations: (a) the location, physical and operational
characteristics, and duration of the proposed development
action; (b) the alternatives to the proposed development
action; (c) the fish and wildlife species and habitats that
will be affected by the proposed development action; and
(d) the nature, extent, and duration of impacts expected to
result from the proposed development action. OAR 635-415-
0020(4)(a) - (d).
In addition to those considerations, and of particu-
lar relevance to LUBA’s conclusions in its final order, OAR
635-415-0020(8) provides:
“In addition to any other information that may be
required by law, a written mitigation plan prepared for the
Department shall:
“(a) Include the information required in OAR 635-415-
0020(4)(a) - (d); and
“(b) Describe the mitigation actions which shall be
taken to achieve the fish and wildlife habitat mitigation
goals and standards of OAR 635-415-0025; and
“(c) Describe and map the location of [t]he development
action and mitigation actions including the latitude and
632 Dept. of Fish and Wildlife v. Crook County
longitude, township, range, section, quartersection and
county; and
“(d) Complement and not diminish mitigation provided
for previous development actions; and
“(e) Include protocols and methods, and a reporting
schedule for monitoring the effectiveness of mitigation
measures. Monitoring efforts shall continue for a dura-
tion and at a frequency needed to ensure that the goals
and standards in OAR 635-415-0025 are met, unless the
Department determines that no significant benefit would
result from such monitoring; and
“(f) Provide for future modification of mitigation mea-
sures that may be required to meet the goals and standards
of OAR 635-415-0025; and
“(g) Be effective throughout the project life or the
duration of project impacts whichever is greater.
“(h) Contain mitigation plan performance measures
including:
“(A) Success Criteria. The mitigation plan must clearly
define the methods to meet mitigation goals and standards
and list the criteria for measuring success;
“(B) Criteria and a timeline for formal determination
that the mitigation goals and standards have been met;
“(C) Provisions for long-term protection and manage-
ment of the site if appropriate;
“(D) A reporting schedule for identifying progress
toward achieving the mitigation goals and standards and
any modification of mitigation measures. Mitigation goals
and standards must be achieved within a reasonable time
frame to benefit the affected fish and wildlife species.”
Procedural History. Solar Farm consulted with
ODFW before submitting its mitigation plan to the county’s
planning commission. Solar Farm, having used ODFW’s
COMPASS Habitat Mapping Tool (COMPASS), character-
ized the site as Habitat Category 6. Although Solar Farm
assessed the proposed site as having “low habitat quality”
for big game, it nevertheless acquiesced to ODFW’s view
that the land was a higher quality of habitat (a combination
of Habitat Categories 4 and 5) and agreed to a 1:1 mitigation
Cite as 315 Or App 625 (2021) 633
ratio (for every acre impacted by the development, one acre
of mitigation would be required). Solar Farm’s mitigation
plan (the V2 Plan) included two options, summarized as
follows:6
• Option 1. Because western juniper has signifi-
cantly expanded its range and encroached land-
scapes dominated by shrubs and herbaceous veg-
etation and negatively affects ecosystems, a “final
mitigation plan will be prepared” before construc-
tion of the proposed solar facility to cull encroach-
ing juniper at some location in Crook County, which
would ultimately provide forage for big game. The
to-be-developed final mitigation plan would include,
among other things, success criteria, durability
measures, and a reporting schedule.
• Option 2. A one-time payment to the Deschutes
Land Trust (or a similar land trust) to aid its Crook
County conservation initiatives. The amount of the
payment would be determined by a formula used for
other similar solar facility projects in the surround-
ing area.
ODFW and the Department of Land Conservation
and Development (DLCD) jointly submitted comments to the
county’s planning commission about Solar Farm’s V2 Plan.
The agencies asserted that the V2 Plan was insufficiently
specific about the needed measures to achieve “no net loss”
to mitigate impact to wildlife. To begin with, the agencies
disagreed with Solar Farm’s assessment of the habitat as
Category 6 and asserted that Solar Farm mistakenly used
COMPASS. The agencies expressed their belief that the
project needed a site-specific assessment and, based on what
they knew of the site, classified the additional 334 acres as
Habitat Category 3 or Habitat Category 4 (OAR 635-415-
0025(3) and (4)), given its importance for a variety of wildlife,
including reptiles, small mammals, and migratory birds.
6
The V2 Plan also proposed a third mitigation option, which were unspecified
alternative mitigation measures to be developed “in consultation” with ODFW,
subject to that agency’s “reasonable approval.” The agencies recommended that
Option 3 be omitted from final approval, to which the county agreed.
634 Dept. of Fish and Wildlife v. Crook County
With that in mind, the agencies made recommen-
dations. They were of the view that Option 1—juniper
removal—was inadequate, among other things, because it
lacked the informational requirements set out in ORS 635-
415-0020(8), including assurances that mitigation actions
will offset adverse impacts and the identification of a spe-
cific mitigation site. As to Option 2, the agencies, citing
OAR 635-415-0020(8)(c) (requiring description and map of
the mitigation action), recommended the inclusion of a spe-
cific project area for which the one-time mitigation payment
would benefit. They also recommended that Solar Farm pro-
vide documentation that Deschutes Land Trust was willing
to accept responsibility for the mitigation measures that the
one-time payment contemplated.
The county’s planning commission approved the
modification of the CUP. ODFW appealed the decision to the
Crook County Court.7 The county court held a hearing on the
application and concluded that Options 1 and 2 were specific
enough to ensure appropriate mitigation for the proposed
solar-facility site. The county court noted that the applicant
and ODFW agreed that a 1:1 ratio of mitigating one acre
for every acre of solar facility development was appropriate,
characterizing the mitigation plan as a “no net loss” mitiga-
tion standard, but recognized that there was disagreement
between the applicant and ODFW on the implementation
of the “no net loss” standard. The county court, however,
found that there was substantial evidence that V2 Plan
addressed significant fish and wildlife habitat impacts and
was consistent with the Mitigation Policy. Moreover, the
county court, relying on OAR 660-033-0130(38)(j) (a set of
DLCD rules that set standards for approval of solar facili-
ties on nonarable land of 320 acres or less), concluded that
Solar Farm’s V2 Plan was “appropriate.” OAR 660-033-0130
(38)(j)(G) (providing, in part, that, “[w]here the applicant
and the resource management agency cannot agree on what
mitigation will be carried out, the county is responsible for
determining appropriate mitigation, if any, required for the
7
The Crook County Court is the governing body for Crook County and is
comprised of a county judge and two county commissioners. ORS 203.111; ORS
376.005.
Cite as 315 Or App 625 (2021) 635
facility” (emphasis added)).8 In the county court’s view, the
mitigation options were in line with mitigation approaches
taken by other solar facilities in the area and consistent
with the county court’s prior decisions.
ODFW petitioned for LUBA review of the county’s
decision, arguing that the county court improperly con-
strued ORS 215.446(3)(a)(C) when it determined that the
V2 Plan satisfied that statute’s requirements. It argued
that the V2 Plan failed to meet the Mitigation Policy’s defi-
nition of “mitigation plan” because it failed to “thoroughly
describe the manner in which” implementing the no net loss
standard would occur. OAR 635-415-0005(18). ODFW also
argued that the V2 Plan failed to satisfy the requirements of
OAR 635-415-0020(8), specifically the information required
by OAR 635-415-0020(8)(c), (g), (h)(A), (h)(B), and (h)(D).
Without that information, ODFW asserted, the V2 Plan was
not consistent with the Mitigation Policy and did not sup-
port a conclusion that its implementation would result in no
net loss of habitat quality and quantity.
Solar Farm responded with its view that ORS
215.446(3)(a)(C) did not require that a mitigation plan be
consistent with all of the provisions of the Mitigation Policy,
in particular, the requirements set out in OAR 635-415-
0020(8). The county court, according to Solar Farm, was
not required to determine consistency with OAR 635-415-
0020(8), because that rule is limited to situations in which
ODFW is the permitting authority.
LUBA agreed with ODFW, concluding that the
plain language of ORS 215.446(3)(a)(C) requires a miti-
gation plan that “is consistent with” all of the Mitigation
Policy’s provisions, including those set out in OAR 635-415-
0020(8). LUBA reasoned that, because all of the rules in the
Mitigation Policy state that they implement ORS 496.012,
those rules are “ ‘adopted * * * for the purposes of imple-
menting ORS 496.012.’ ” (Quoting ORS 215.446(3)(a)(C).)
LUBA stated that Solar Farm’s construction of ORS 215.446
(3)(a)(C) “essentially inserts the phrase ‘it deems applicable’
8
Petitioners do not argue on review that the DLCD rules that apply to solar
facility projects that are 320 acres or less also apply to solar facility applications
and review for projects made under ORS 215.446.
636 Dept. of Fish and Wildlife v. Crook County
after the phrase ‘administrative rules adopted by the State
Fish and Wildlife Commission for the purposes of imple-
menting ORS 496.012.’ ” LUBA added that 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.” Additionally, LUBA concluded
that it was not persuaded by Solar Farm’s additional argu-
ments concerning context, namely, that ORS 496.446(2) pro-
vides that an “applicant must demonstrate to the satisfaction
of the county” that the proposed facility meets the standards
set out in subsection (3). (Emphasis added.) LUBA said that
that subsection does not permit the county to determine
which of the Mitigation Policy’s rules apply.
With that decided, LUBA also concluded that the
V2 Plan failed to meet OAR 635-415-0020(8)(g)’s require-
ment that a mitigation plan be “effective throughout the
project life or the duration of the project impacts whichever
is greater” and OAR 635-415-0020(8)(h)’s requirement that
a mitigation plan include certain performance measures.
Moreover, LUBA concluded that the county’s findings nei-
ther adequately explained the justification for the approval
of the V2 Plan, ORS 215.416(9), nor adequately responded to
specific issues raised by ODFW. LUBA remanded the deci-
sion to the county. Petitioners now seek judicial review of
LUBA’s order.
STANDARD OF REVIEW
ORS 197.850(9) requires us to “reverse or remand”
LUBA’s order if it is “unlawful in substance,” which occurs
if it “represent[s] a mistaken interpretation of the applicable
law.” Mountain West Investment Corp. v. City of Silverton, 175
Or App 556, 559, 30 P3d 420 (2001). The issue on review—
what ORS 215.446 requires of a mitigation plan—reduces
to a matter of statutory construction, and we therefore
review LUBA’s opinion for legal error. To do so, we use the
PGE/Gaines methodology, which requires us to examine
the relevant text of ORS 215.446 in context, along with any
relevant legislative history or other aids to construction.
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009);
Trautman/Conte v. City of Eugene, 280 Or App 752, 758, 383
P3d 420 (2016) (“Because LUBA’s legal conclusions involve
Cite as 315 Or App 625 (2021) 637
an issue of statutory construction, we apply the principles
of statutory construction set out in PGE v. Bureau of Labor
and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), as
modified by [Gaines, 346 Or at 171-72.]). When we interpret
terms that are not defined by statute, we typically resort to
dictionary definitions to discern their “plain, natural, and
ordinary meaning.” PGE, 317 Or at 611. Further, when our
review involves statutory construction, we must interpret
statutory provisions correctly, regardless of how the par-
ties have asserted their interpretations. Gunderson, LLC v.
City of Portland, 352 Or 648, 662, 290 P3d 803 (2012) (citing
Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)).
DISCUSSION
Solar Farm, on judicial review, raises five assign-
ments of error. In its first assignment of error, Solar Farm
argues that LUBA erred by requiring “strict compliance”
with the Mitigation Policy. In its second assignment, Solar
Farm contends that LUBA erred by concluding that ORS
215.446 requires “strict compliance” with the Mitigation
Policy as ODFW interprets it. In its third assignment, Solar
Farm argues that LUBA erred by concluding that the V2 Plan
failed to satisfy ORS 215.446 and remanding the county’s
approval of the V2 Plan. Solar Farm, in its fourth and fifth
assignments of error, argues in the alternative—in the event
we agree with LUBA’s construction of ORS 215.446—that
LUBA interpreted OAR 635-415-0020(8) in such a way so as
to allow ODFW to dictate the manner of evidence required
to satisfy that rule, and that LUBA erred by making its own
findings whether the requirements of OAR 635-415-0020(8)
were satisfied. Crook County also weighs in, arguing that
LUBA erred in concluding that the items set out in OAR
635-415-0020(8) were mandatory approval criteria for mid-
size solar facility applicants. In addition to briefing from
petitioners, three industry groups, Community Renewable
Energy, Oregon Solar Energy, and Renewable Northwest,
have supplied amicus briefing to argue that LUBA miscon-
strued ORS 215.446. ODFW defends LUBA’s construction
of ORS 215.446, mainly by arguing that the text of that
statute plainly means that all of the Mitigation Policy rules
apply to applicants.
638 Dept. of Fish and Wildlife v. Crook County
Before we begin our analysis, we pause to make two
points to help frame the parties’ dispute. First, the parties’
clash over the construction of ORS 215.446 reflects simpler
arguments that the parties have asserted from the begin-
ning of this dispute. For petitioners’ part, they view ODFW’s
efforts—by insisting that certain rules of the Mitigation
Policy apply, pressing its interpretation of the rules, and
asserting that the V2 Plan failed to satisfy them—as an
attempt to usurp the decisional authority of the county. As
for ODFW, the department views the V2 Plan as lacking
because it is merely “a plan to submit a plan” and fails to
adequately convey how the impacts of Solar Farm’s solar
facility on wildlife will be mitigated. And, because the
county has approved Solar Farm’s application, when the
final mitigation plan is ultimately submitted to the county,
there will be no forum or opportunity for state agencies or
other concerned parties to object to it.
Second, Solar Farm advances a theme that LUBA
has demanded “strict compliance” with the Mitigation Policy
and ODFW’s interpretation of it. Although that character-
ization is somewhat understandable given LUBA’s view of
ORS 215.446 and its agreement with many of ODFW’s posi-
tions, those are Solar Farm’s words, not LUBA’s. The crux of
LUBA’s decision is that ORS 215.446(3)(a)(C)—requiring a
mitigation plan to “address significant fish and wildlife hab-
itat impacts consistent with” the Mitigation Policy—requires
an applicant to include the informational requirements
described in OAR 635-415-0020(8). Petitioners’ arguments
and assignments of error flow from that key conclusion by
LUBA, and, consequently, we confine our review to deciding
whether that conclusion was correct and addressing how a
mitigation plan submitted for ORS 215.446 compliance is
consistent with the Mitigation Policy. We begin with a dis-
cussion of the relevant significant terms contained in ORS
215.446.
“To the satisfaction of the county.” Approval of an
application by the county is central to the approval frame-
work under ORS 215.446. The purpose of the statute was
to provide county approval as an alternative to EFSC
permitting for midsize renewable energy facilities. ORS
Cite as 315 Or App 625 (2021) 639
215.446(2) provides that applications “for a land use per-
mit to establish a renewable energy facility must be made
under ORS 215.416,” which sets out notice and related pro-
cedural requirements for county action on permits that are
subject to discretionary approval. See Flowers v. Klamath
County, 98 Or App 384, 386, 780 P2d 227, rev den, 308 Or
592 (1989). Further, subsection (2) provides that an “appli-
cant must demonstrate to the satisfaction of the county that
the renewable energy facility meets the standards under
subsection (3) of this section.” When those two sentences are
considered together, it is plainly evident that the county is
the decisionmaker for a permit allowing a renewable energy
facility under ORS 215.446 and that an applicant prepares
a mitigation plan for the county’s approval.
“Consistent with.” As stated earlier, ORS 215.446
(3)(a)(C) provides that a county must require an applicant to
“[d]evelop a mitigation plan to address significant fish and
wildlife habitat impacts consistent with the administrative
rules adopted by the State Fish and Wildlife Commission
for the purposes of implementing ORS 496.012[.]”
As to the ordinary meaning of “consistent with,” we turn
to the term’s dictionary definition. “Consistent” is defined
as “marked by agreement and concord <opinions consistent
with each other> : coexisting and showing no noteworthy
opposing, conflicting, inharmonious, or contradictory qual-
ities or trends : compatible—usually used with with.”9 That
is, “consistent with” connotes that two things are concordant
with each other and that they lack noteworthy conflicting
elements or qualities. That meaning alone, however, does
not answer the question of what the legislature intended
when it provided that mitigation plans are to be prepared as
part of an application under ORS 215.446 and, specifically,
whether the legislature intended that a mitigation plan
includes the information set out in OAR 635-415-0020(8).
LUBA construed the phrase “[d]evelop a mitiga-
tion plan to address significant fish and wildlife impacts
9
Merriam-Webster Unabridged Dictionary, https://unabridged.merriam-
webster.com/unabridged/consistent (accessed Oct 24, 2021) (definition of
consistent).
640 Dept. of Fish and Wildlife v. Crook County
consistent with the administrative rules” of the Mitigation
Policy to mean all of rules of the Mitigation Policy, includ-
ing OAR 635-415-0020(8). It reasoned that to do otherwise
would essentially insert the phrase “as applicant deems
applicable” after the phrase “administrative rules adopted
by [ODFW] for the purposes of implementing ORS 496.012.”
See ORS 174.010 (“In the construction of a statute, the office
of the judge is simply to ascertain and declare what is, in
terms or in substance, contained therein, not to insert what
has been omitted, or to omit what has been inserted.”).
However, Solar Farm and the county do not arrive with-
out reason to their view that the applicable “administrative
rules” do not include OAR 635-415-0020(8). Rather, petition-
ers assert that context and the legislative history of ORS
215.446 compel that view. We turn to those arguments.
Context. Although we agree with LUBA that “con-
sistent with” the rules of ODFW’s mitigation policy does not
mean that an applicant or the county approving the applica-
tion for a solar facility gets to determine which rules apply,
we proceed to explain that, once ORS 215.446 is considered
in relation to how the rules of the Mitigation Policy operate
as a whole, compliance with those items set out in OAR 635-
415-0020(8) is not a requirement of the application process
under ORS 215.446.
The informational requirements set out in OAR
635-415-0020(8) are prefaced by the statement that, “[in]
addition to any other information that may be required by
law, a written mitigation plan prepared for the Department
shall [contain the information set out in paragraphs
(a) - (h)].” (Emphasis added.) In other words, subsection (8)
plainly indicates that the information required under that
rule is for when an application is prepared for ODFW. An
application made under ORS 215.446 is prepared for the
county. To be sure, under ORS 215.446(3)(a), an applicant
must consult with ODFW before it submits its application to
the county, which is the approving entity, but that provision
cannot be understood to say that an applicant’s mitigation
plan is prepared for ODFW. A construction of ORS 215.446
that says that an applicant must comply with the informa-
tion requirements set out in OAR 635-415-0020(8) would
Cite as 315 Or App 625 (2021) 641
need to substitute “the county” in place of “the Department.”
That substitution strikes a discordant note by requiring
application of that rule when it was adopted by the Fish and
Wildlife Commission for the purpose of ODFW’s own use
when the department is the permitting authority.
Additionally, OAR 635-415-0020(8) is a rule that
sets out a circumstance for when ODFW requires certain
information for mitigation plans. 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. See OAR 635-415-0020(1), (2).
Rather, ODFW’s own rule—OAR 635-415-0020(3)—states
that the department must “recommend mitigation consis-
tent with the goals and standards of OAR 635-415-0025”
when the two foregoing scenarios do not apply and a state
environmental law or land use regulation, like ORS 215.446,
requires mitigation for impacts to fish and wildlife.
Other rules contained in the mitigation policy allow
for ODFW to recommend or require a mitigation action
(depending on the statutory authority that requires a mit-
igation plan). See OAR 635-415-0025(1) - (6); OAR 635-415-
0020(4) (requiring ODFW to consider certain factors when
it is making a recommendation or requiring something for a
development action). To us, that suggests that, because OAR
635-415-0020(8) speaks to situations in which something is
required, it is not a rule of the mitigation policy that applies
to all situations in which ODFW is involved in furthering
the state’s wildlife policy and applications that require mit-
igation plans.
Accordingly, rules in the Mitigation Policy cre-
ate different obligations for applicants depending whether
ODFW is requiring mitigation, based on statutory author-
ity, or whether ODFW is recommending mitigation to other
permitting authorities. Here, ORS 215.446 provides that a
county is the permitting authority. When the legislature
enacted ORS 215.446, those distinctions were in place.
There is nothing in the text of ORS 215.446 that suggests
that the legislature intended to modify those distinctions.
Therefore, the phrase “the administrative rules adopted by
the State Fish and Wildlife Commission for the purposes of
642 Dept. of Fish and Wildlife v. Crook County
implementing ORS 496.012,” ORS 215.446(3)(a)(C), refers to
rules in which ODFW is not the permitting authority, and
those rules do not include OAR 635-415-0020(8).
Legislative history. EFSC was formerly the sole per-
mitting authority for solar facilities 320 acres or greater in
size. The proponent of HB 2329, Representative Ken Helm,
was asked during a meeting of the Joint Subcommittee
on Natural Resources if counties would be using the same
wildlife mitigation criteria as EFSC used. Representative
Helm responded, “The bill intends that, yes.” Audio Record-
ing, Joint Subcommittee on Natural Resources, HB 2329,
June 10, 2019, at 23:24 (comments of Rep Ken Helm),
https://olis.oregonlegislature.gov (accessed Nov 12, 2021).
Representative Helm also explained that HB 2329 created
an approval process—different from the county approval
process for smaller solar facilities—“in which the county
would administrate the approval process, but this bill
includes particular requirements that mirror the EFSC
criteria—not necessarily the process, but the criteria.” Audio
Recording, Joint Subcommittee on Natural Resources, HB
2329, June 10, 2019, at 21:40 (comments of Rep Ken Helm)
https://olis.oregonlegislature.gov (accessed Nov 12, 2021).
The relevant EFSC criteria to which Helm referred is set
out in OAR 345-022-0060:
“To issue a site certificate, the Council must find that
the design, construction and operation of the facility, tak-
ing into account mitigation, are consistent with:
“(1) The general fish and wildlife habitat mitigation
goals and standards of OAR 635-415-0025(1) through (6) in
effect as of February 24, 2017[.]”
EFSC’s rule does not require the OAR 635-415-0020(8)
submittal information. To impose the additional submittal
requirements of OAR 635-415-0020(8) for ORS 215.446 per-
mitting would impose procedural hurdles for applications
made under ORS 215.446 above those required for EFSC
permitting. The legislative history indicates that that was
not the legislature’s intent.
Consequently, although all the rules of the Mitigation
Policy have the purpose of implementing ORS 496.012—the
Cite as 315 Or App 625 (2021) 643
Wildlife Policy—not all the rules are applicable when ODFW
is not the permitting authority. With the text, context, and
legislative history of ORS 215.446 considered together, sub-
section (3)(a)(C) does not require an applicant to include
the information set out in OAR 635-415-0020(8). Given the
framework of the Mitigation Policy, in which certain rules
are intended for ODFW’s own approval process, nothing in
ORS 215.446 suggests that ODFW requirements or submit-
tal rules meant for ODFW’s approval were intended by the
legislature to apply to the county approval process for mid-
size renewable energy facilities. LUBA’s order, however, con-
cluded that the submittal information set out in OAR 635-
415-0020(8), which is information that must be provided in
applications prepared for ODFW, are requirements that an
applicant must include to demonstrate to the county’s satis-
faction under ORS 215.446 that the mitigation plan is con-
sistent with the Mitigation Policy. That conclusion is unlaw-
ful in substance, and we therefore reverse and remand the
petition to LUBA.
The parties’ arguments focus on the role of OAR
635-415-0020(8), and we have concluded that ORS 215.446
does not require an applicant to include that rule’s sub-
mittal requirements. Left open, however, is the question of
what “consistent with” the Mitigation Policy does require.
Given the limited nature of the parties’ arguments, we do
not endeavor to provide a conclusive, all-encompassing con-
struction of what a mitigation plan prepared for an applica-
tion under ORS 215.446 requires, but we do offer the follow-
ing observations, as relevant to issues the parties raise on
review that LUBA will consider on remand.
Petitioners contend that an ORS 215.446 applica-
tion for a solar facility must include a mitigation plan that
applies the goals and standards of OAR 635-415-0025. That
view is largely correct, but we highlight elements of OAR
635-415-0025 and other provisions of the Mitigation Policy
that must be considered when a county makes a determina-
tion that a mitigation plan is “consistent with” the Mitigation
Policy.
First, the Mitigation Policy defines “Mitigation Plan”
(ORS 215.446(3)(a)(C) requires that an applicant must
644 Dept. of Fish and Wildlife v. Crook County
develop a “mitigation plan” consistent with the Mitigation
Policy) as
“a written plan or statement that thoroughly describes
the manner in which the impact of a development action
will be reduced or eliminated over time, avoided, and/or
minimized; and the affected environment, including fish
and wildlife habitat, monitored, restored, rehabilitated,
repaired and/or replaced or otherwise compensated for in
accordance with OAR 635-415-0010 of these rules.”
OAR 635-415-0005(18) (emphases added). The emphasized
terms—“thoroughly describes the manner” and “will be”—
indicates that specificity and definiteness are required for a
mitigation plan to be consistent with the Mitigation Policy.
That is, the term “will be” connotes a definiteness of future
action and the term “thorough” connotes that the mitigation
plan requires completeness and attention to detail.10 When
a county assesses whether a mitigation plan is “consistent
with” the Mitigation Policy, it must determine whether the
plan has those qualities.
Also notable are the standards set out for each
Habitat Category. OAR 635-415-0025. Petitioners have
accepted that the goals for Habitat Categories 3 and 4—“no
net loss” in both cases—are appropriate criteria for Solar
Farm’s mitigation plan. (For example, the mitigation goal
for Habitat Category 4 “is no net loss in either existing hab-
itat quantity or quality.” OAR 635-415-0025(4)(a).) In addi-
tion to a goal, each Habitat Category has a directive. For
instance, Habitat Category 4 directs ODFW to
“achieve the mitigation goal for Category 4 habitat by rec-
ommending or requiring:
“(A) Avoidance of impacts through alternatives to the
proposed development action; or
“(B) Mitigation of impacts, if unavoidable, through
reliable in-kind or out-of-kind, in-proximity or off-proximity
habitat mitigation to achieve no net loss in either pre-
development habitat quantity or quality. Progress towards
10
“Thorough” means “marked by completeness: such as * * * carried through
to completion especially with full attention to details : complete <a thorough
search>[.]” Merriam-Webster Unabridged Dictionary, https://unabridged.merriam-
webster.com/unabridged/thorough (accessed Oct 24, 2021).
Cite as 315 Or App 625 (2021) 645
achieving the mitigation goals and standards shall be
reported on a schedule agreed to in the mitigation plan
performance measures. The fish and wildlife mitigation
measures shall be implemented and completed either prior
to or concurrent with the development action.”
OAR 635-415-0025(4)(b). We note two things here. First, an
ODFW recommendation furthers the Mitigation Policy by
seeking a mitigation plan that has (if an alternative develop-
ment action is unavoidable) “reliable in-kind or out-of-kind,
in-proximity or off-proximity habitat mitigation to achieve
no net loss.” OAR 635-415-0025(4)(b) (emphasis added). The
Mitigation Policy therefore calls for reliable “no net loss”
mitigation, i.e., a mitigation measure “fit to be relied on.”11
Second, an ODFW recommendation to further “no net loss”
mitigation reflects that, under the Mitigation Policy, a mit-
igation plan includes a schedule of performance measures.
Finally, we observe that OAR 635-415-0020(4) pro-
vides that ODFW’s recommendations for mitigation of a
development action’s impact must be based, among other
things, on the “location, physical and operational charac-
teristics, and duration of the proposed development action”
and the “nature, extent, and duration of impacts expected
to result from the proposed development action.” OAR 635-
415-0020(4)(a), (d). The OAR 635-415-0020(4) considerations
illustrate that the Mitigation Policy includes, regardless
of ODFW’s particular role, durational considerations as to
the development action and the mitigation efforts. Ignoring
those considerations would allow for mitigation measures
that fail to accommodate the impact on habitat for the full
life of a renewable energy facility.
With that said, we return to the meaning of “con-
sistent with.” A mitigation plan prepared for ORS 215.446
approval must be concordant with the Mitigation Policy and
not show any substantive conflicting elements. Although a
mitigation plan need not follow the submittal requirements
set out in OAR 635-415-0020(8), there are other require-
ments of the Mitigation Policy that a mitigation plan must
11
Merriam-Webster Unabridged Dictionary, https://unabridged.merriam-
webster.com./unabridged/reliable (accessed Oct 24, 2021) (definition of reliable).
646 Dept. of Fish and Wildlife v. Crook County
satisfy, including the ones that we have highlighted above.
On remand, LUBA will consider those in the first instance.
Reversed and remanded.