OAR 345-022-0030: Land Use

(1) To issue a site certificate, the Council must find that the proposed facility complies with the statewide planning goals adopted by the Land Conservation and Development Commission. (2) The Council shall find that a proposed facility complies with section (1) if: (a) The applicant elects to obtain local land use approvals under ORS 469.504(1)(a) and the Council finds that the facility has received local land use approval under the acknowledged comprehensive plan and land use regulations of the affected local government; or (b) The applicant elects to obtain a Council determination under ORS 469.504(1)(b) and the Council determines that: (A) The proposed facility complies with applicable substantive criteria as described in section (3) and the facility complies with any Land Conservation and Development Commission administrative rules and goals and any land use statutes directly applicable to the facility under ORS 197.646(3); (B) For a proposed facility that does not comply with one or more of the applicable substantive criteria as described in section (3), the facility otherwise complies with the statewide planning goals or an exception to any applicable statewide planning goal is justified under section (4); or (C) For a proposed facility that the Council decides, under sections (3) or (6), to evaluate against the statewide planning goals, the proposed facility complies with the applicable statewide planning goals or that an exception to any applicable statewide planning goal is justified under section (4). (3) As used in this rule, the “applicable substantive criteria” are criteria from the affected local government’s acknowledged comprehensive plan and land use ordinances that are required by the statewide planning goals and that are in effect on the date the applicant submits the application. If the special advisory group recommends applicable substantive criteria, as described under OAR 345-015-0180, the Council shall apply them. If the special advisory group does not recommend applicable substantive criteria, the Council shall decide either to make its own determination of the applicable substantive criteria and apply them or to evaluate the proposed facility against the statewide planning goals. (4) The Council may find goal compliance for a proposed facility that does not otherwise comply with one or more statewide planning goals by taking an exception to the applicable goal. Notwithstanding the requirements of ORS 197.732, the statewide planning goal pertaining to the exception process or any rules of the Land Conservation and Development Commission pertaining to the exception process, the Council may take an exception to a goal if the Council finds: (a) The land subject to the exception is physically developed to the extent that the land is no longer available for uses allowed by the applicable goal; (b) The land subject to the exception is irrevocably committed as described by the rules of the Land Conservation and Development Commission to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable; or (c) The following standards are met: (A) Reasons justify why the state policy embodied in the applicable goal should not apply; (B) The significant environmental, economic, social and energy consequences anticipated as a result of the proposed facility have been identified and adverse impacts will be mitigated in accordance with rules of the Council applicable to the siting of the proposed facility; and (C) The proposed facility is compatible with other adjacent uses or will be made compatible through measures designed to reduce adverse impacts. (5) If the Council finds that applicable substantive local criteria and applicable statutes and state administrative rules would impose conflicting requirements, the Council shall resolve the conflict consistent with the public interest. In resolving the conflict, the Council cannot waive any applicable state statute. (6) If the special advisory group recommends applicable substantive criteria for an energy facility described in ORS 469.300(11)(a)(C) to (E) or for a related or supporting facility that does not pass through more than one local government jurisdiction or more than three zones in any one jurisdiction, the Council shall apply the criteria recommended by the special advisory group. If the special advisory group recommends applicable substantive criteria for an energy facility described in ORS 469.300(11)(a)(C) to (E) or a related or supporting facility that passes through more than one jurisdiction or more than three zones in any one jurisdiction, the Council shall review the recommended criteria and decide whether to evaluate the proposed facility against the applicable substantive criteria recommended by the special advisory group, against the statewide planning goals or against a combination of the applicable substantive criteria and statewide planning goals. In making the decision, the Council shall consult with the special advisory group, and shall consider: (a) The number of jurisdictions and zones in question; (b) The degree to which the applicable substantive criteria reflect local government consideration of energy facilities in the planning process; and (c) The level of consistency of the applicable substantive criteria from the various zones and jurisdictions. (7) To assist the Council in determining whether the standard outlined in (1) through (6) has been met, the Applicant must submit : (a) Information about the proposed facility’s compliance with the statewide planning goals adopted by the Land Conservation and Development Commission, providing evidence to support a finding by the Council as required by OAR 345-022-0030. (b) The applicant must state whether the applicant elects to address the Council's land use standard by obtaining local land use approvals under ORS 469.504(1)(a) or by obtaining a Council determination under ORS 469.504(1)(b). An applicant may elect different processes for an energy facility and a related or supporting facility but may not otherwise combine the two processes. Once the applicant has made an election, the applicant may not amend the application to make a different election. In this subsection, “affected local government” means a local government that has land use jurisdiction over any part of the proposed site of the facility. In the application, the applicant must: (A) Include a map showing the comprehensive plan designations and land use zones in the analysis area; (B) If the applicant elects to obtain local land use approvals: (i) Identify the affected local governments from which land use approvals will be sought; (ii) Describe the land use approvals required in order to satisfy the Council's land use standard; (iii) Describe the status of the applicant’s application for each land use approval; and (iv) Provide an estimate of time for issuance of local land use approvals. (C) If the applicant elects to obtain a Council determination on land use: (i) Identify the affected local governments; (ii) Identify the applicable substantive criteria from the affected local government’s acknowledged comprehensive plan and land use regulations that are required by the statewide planning goals and that are in effect on the date the application is submitted and describe how the proposed facility complies with those criteria; (iii) Identify all Land Conservation and Development Commission administrative rules, statewide planning goals and land use statutes directly applicable to the facility under ORS 197.646(3) and describe how the proposed facility complies with those rules, goals and statutes; (iv) If the proposed facility might not comply with all applicable substantive criteria, identify the applicable statewide planning goals and describe how the proposed facility complies with those goals; and (v) If the proposed facility might not comply with all applicable substantive criteria or applicable statewide planning goals, describe why an exception to any applicable statewide planning goal is justified, providing evidence to support all findings by the Council required under ORS 469.504(2). (D) If the proposed facility will be located on federal land: (i) Identify the applicable land management plan adopted by the federal agency with jurisdiction over the federal land; (ii) Explain any differences between state or local land use requirements and federal land management requirements; (iii) Describe how the proposed facility complies with the applicable federal land management plan; (iv) Describe any federal land use approvals required for the proposed facility and the status of application for each required federal land use approval; (v) Provide an estimate of time for issuance of federal land use approvals; and (vi) If federal law or the land management plan conflicts with any applicable state or local land use requirements, explain the differences in the conflicting requirements, state whether the applicant requests Council waiver of the land use standard described under paragraph (B) or (C) of this subsection and explain the basis for a waiver. (c) A materials analysis, including: (A) An inventory of substantial quantities of industrial materials flowing into and out of the proposed facility during construction and operation; (B) The applicant's plans to manage hazardous substances during construction and operation, including measures to prevent and contain spills; and (C) The applicant's plans to manage non-hazardous waste materials during construction and operation.