In a conversation with Idaho Power officials last week, it was learned that IPCo is still determinated to cross exclusive farm use land in Oregon using the "feasibility" argument.
The only feasibility standard in ORS 215.275 that might apply is this one:
(b) . . . it must cross land in one or more areas zoned for exclusive farm use in order to achieve a reasonably direct route. . .
Maintaining a "direct route" (while adding 17 extra miles through Malheur County) over fewest people is IPCo's main goal; however, Oregon law does not consider cost alone a criteria for siting feasibility, other nonresource (non EFU) lands are nearby, and reasonable alternatives have been presented.
Miller-Nash Attorneys at Law is a prominent Oregon and Washington legal firm retaining 15 lawyers proficient in land use law. In a 2004 article appearing on Miller-Nash's website, Attorney Kelly Hosaini addresses "feasibility" as a determinant in building non-farm structures on EFU land. http://www.millernash.com/showarticle.aspx?Show=693&PrintPage=True
The arguments cited here were between local and county governments, but the issues are eerily relevant to IPCo ("applicant") and Oregon's eastern counties ("opponent"):
Siting Utility Facilities in EFU Zones
EFU Alternative Site Test Clarified by LUBA (Land Use Board of Appeals)
Siting a utility facility in an Exclusive Farm Use (EFU) zone is a process that contains numerous traps for the unwary. One such trap is the alternative site analysis required by Oregon law. Two recent LUBA decisions . . . make it clear that to satisfy the analysis, the applicant must engage in a thorough and careful analysis of all reasonable alternative sites and provide the county with a thorough accounting of those sites and the reasons for their rejection. . .
. . . LUBA said that such a showing is a "demanding standard" . . . the core of the necessity test is the requirement that the (applicant) determine that the utility facility cannot feasibly be located on non-EFU land, which in turn requires that the (applicant) consider reasonable alternatives to siting the facility on EFU-zoned land." (This means not moving the line from EFU land to other EFU land.)
LUBA noted that the petitioner (opponent) had identified a number of alternative non-EFU sites not considered . . . but the applicant had rejected the consideration of these sites, arguing that it . . . was implicit in that evidence that other non-EFU sites were considered and rejected.
LUBA rejected this "implicit alternatives analysis" because LUBA could not say that "an implicit alternatives analysis that does not in fact consider any alternatives, or explain why no alternatives need be considered, ‘clearly supports’ a determination that the proposed facility must be sited on EFU-zoned lands under the ORS 215.275 factors."
. . . LUBA went on to explain that an applicant for a utility facility does not need to consider every hypothetical possibility for siting the facility on non-EFU land. However, if an opponent is able to identify an alternative site with reasonable specificity to show that it is a feasible alternative, (the applicant) MUST consider the site. . . .
. . . (A)pplicants wishing to site . . . in an EFU zone: Do the requisite research prior to submitting the application, and be specific about which alternative, non-EFU-zoned sites were considered and why, under ORS 215.275(2), each was rejected.
It is not enough to submit an application that only explains the reasons for selecting the proposed site. It is also not enough to explain in general terms why alternative non-EFU sites within the search ring are not feasible. Even if a jurisdiction allows an applicant to submit such a general analysis, opponents may take the applicant to task for not being specific enough about alternative sites and the reasons for rejection. . .
Accordingly, it is more efficient to anticipate and address such challenges during the research stage of the application process than to address them through the appeals process later.
Although the Land Use Board of Appeals may never rule on the B2H case, since it is under the jurisdiction of the OPUC, ODOE and EFSC, it is instructive that land use laws in Oregon may prove a trap for IPCo, in its determination to cross EFU at all hazards.
This is especially relevant when Oregon's Department of Energy issued a preliminary opinion in its January 26th Project Order instructing IPCo to move its line onto non-resource lands, and to seriously consider SIP's alternate routes.
To consider reasonable non-EFU alternates now would be more "efficient" than through the contested case hearing process later.
