Defining Farmland and Agriculture
States and local governments are seeking new ways to regulate solar development on certain agricultural lands. In specific cases, solar installations on farmland might be prohibited, restricted, subject to certain conditions, or even promoted and incentivized.
State and local governments will benefit from reviewing relevant legal definitions of farmland when establishing new solar development laws. This review should consider the interaction of new and existing regulatory categories for farmland with new and existing regulatory categories for solar development, as well with other applicable state and municipal laws governing land use and environmental permits.
Carefully crafted legal and regulatory definitions for different types of farmland can help protect agricultural land uses and ensure farmer access to clean energy.
When creating new definitions or categories for types of farmland, lawmakers may begin by looking at federal definitions, which can be incorporated by reference into new laws and regulations. Lawmakers can also design their own categories of important farmland based on a variety of land use characteristics, including the farmlands’ acreage, income, crops grown, specific agricultural uses, or even suitability for solar development.
Federal Definitions of Farmland
Farmland Protection Policy Act
The Code of Federal Regulations (CFR) at 7 CFR § 657.5 defines several categories of important farmland in the United States under the Farmland Protection Policy Act (FPPA), including 1) prime farmland, 2) unique farmland, 3) additional farmland of statewide importance, and, 4) additional farmland of local importance. FPPA is administered by the Natural Resources Conservation Service, and its purpose is to minimize federal contributions to farmland conversion and ensure federal programs are compatible with state, local, and private farmland protection programs and policies. However, the FPPA definitions for farmland are often borrowed for other statutory purposes, including rules for solar development.
“…land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber, and oilseed crops, and is also available for these uses (the land could be cropland, pastureland, rangeland, forest land, or other land, but not urban built-up land or water). It has the soil quality, growing season, and moisture supply needed to economically produce sustained high yields of crops when treated and managed, including water management, according to acceptable farming methods. In general, prime farmlands have an adequate and dependable water supply from precipitation or irrigation, a favorable temperature and growing season, acceptable acidity or alkalinity, acceptable salt and sodium content, and few or no rocks. They are permeable to water and air. Prime farmlands are not excessively erodible or saturated with water for a long period of time, and they either do not flood frequently or are protected from flooding. Examples of soils that qualify as prime farmland are Palouse silt loam, 0 to 7 percent slopes; Brookston silty clay loam, drained; and Tama silty clay loam, 0 to 5 percent slopes.”
To qualify as “prime,” farmland must also meet specific criteria relating to soil moisture and irrigation, soil temperature, pH, flooding, erosion, and permeability, as set out in 7 CFR § 657.5(a)(2).
Note: This definition does not necessarily include all land that is currently being farmed; rather, it identifies productive soils that are suitable to be farmed.
“…land other than prime farmland that is used to produce specific high value food and fiber crops. It has the special combination of soil quality, location, growing season, and moisture supply needed to economically produce sustained high quality and/or high yields of a specific crop when treated and managed according to acceptable farming methods. Examples of such crops are citrus, tree nuts, olives, cranberries, fruit, and vegetables.” 7 CFR § 657.5(b)(1).
The definition further requires the land have “a moisture supply that is adequate for the specific crop,” and a “combination of favorable factors” that “favor the growth of a specific food or fiber crop.” 7 CFR § 657.5(b(2).
Note: This category focuses on the land’s productivity and economic potential, capturing farmland that might escape regulatory attention under the soil quality characteristics analyzed in the “prime” definition.
“…those that are nearly prime farmland and that economically produce high yields of crops when treated and managed according to acceptable farming methods. Some may produce as high a yield as prime farmlands if conditions are favorable. In some States, additional farmlands of statewide importance may include tracts of land that have been designated for agriculture by State law.” 7 CFR § 657.5(c). It up to relevant state agencies to develop “criteria for defining and delineating this land.”
Note: When “additional farmland of statewide importance” is defined, that land is treated as important farmland under the federal definition.
“In some local areas there is concern for certain additional farmlands for the production of food, feed, fiber, forage, and oilseed crops, even though these lands are not identified as having national or statewide importance.” 7 CFR § 657.5(d).
Note: Like the state-identified farmland, identification of locally-important farmland is left up to relevant local agencies and ordinances.
USDA Census of Agriculture
The Census of Agriculture collects data on all farmland and active farms in the United States, and the U.S.D.A ‘s Economic Research Service has developed extensive definitions in pursuit of accurate data collection. The categories of “land in farms” and “other farmland” may be useful to policymakers attempting to target certain types of farmland for solar development restrictions or incentives, respectively.
“The acreage designated as ‘’land in farms’’ consists primarily of agricultural land used for crops, pasture, or grazing. It also includes woodland and wasteland not actually under cultivation or used for pasture or grazing, provided it was part of the farm producer’s total operation. Large acreages of woodland or wasteland held for nonagricultural purposes were deleted from individual reports during the edit process. Land in farms includes CRP, WRP, FWP, and CREP acres. Land in farms is an operating unit concept and includes land owned and operated as well as land rented from others. Land used rent free was reported as land rented from others. All grazing land, except land used under government permits on a per-head basis, was included as ‘‘land in farms’’ provided it was part of a farm or ranch. Land under the exclusive use of a grazing association was reported by the grazing association and included as land in farms. All land in American Indian reservations used for growing crops, grazing livestock, or with the potential of grazing livestock was included as land in farms. Land in reservations not reported by reservation, individual American Indians, or non-Native Americans was reported in the name of the cooperative group that used the land. In a few instances, an entire American Indian reservation was reported as one farm.”
“This category includes land in house lots, barn lots, ponds, roads, ditches, wasteland, etc. It includes those acres in the farm operation not classified as cropland, pastureland, or woodland.”
State Definitions of Farmland
Lawmakers may choose to incorporate federal definitions of farmland by reference, or may define one or several meanings for the words “farm,” “farmer,” “farmland,” “agriculture,” “agricultural use,” or “land in agricultural production” to serve different purposes in different laws and regulations. Definitions may be based on a list of crops or specific agricultural uses, the suitability of certain lands for farming, or on the farm’s acreage or income generated from farm products.
Del. Code Ann. tit. 9 § 8330 (2019)
“Land shall be deemed to be in agricultural use when devoted to the production for sale of plants and animals useful to man, including but not limited to: forages and sod crops; grains and feed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; trees and forest products; or when devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government.”
Fla. Stat. § 193.461 (2019)
“In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
- The length of time the land has been so used.
- Whether the use has been continuous.
- The purchase price paid.
- Size, as it relates to specific agricultural use, but a minimum acreage may not be required for agricultural assessment.
- Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices.
- Whether the land is under lease and, if so, the effective length, terms, and conditions of the lease.
- Such other factors as may become applicable.”
N.Y Agric. & Mkts. Law § 301 (Consol. 2019).
“Land used in agricultural production” means not less than seven acres of land used as a single operation in the preceding two years for the production for sale of crops, livestock or livestock products of an average gross sales value of ten thousand dollars or more; or, not less than seven acres of land used in the preceding two years to support a commercial horse boarding operation or a commercial equine operation with annual gross receipts of ten thousand dollars or more. Land used in agricultural production shall not include land or portions thereof used for processing or retail merchandising of such crops, livestock or livestock products. Land used in agricultural production shall also include: [omitted]”
Energy-specific Definitions of Farmland and Agricultural Use
Lawmakers can also define types of farmland or agricultural uses within the chapter or title of state code applicable to public utilities, or within specific rate incentive programs. This provides clarity as to the definition of certain lands within the energy development context.
Refers to the agency of agriculture’s soil definition in the criteria for obtaining a certificate of public good:
“(i) In any proceeding regarding an electric generation facility that will have a capacity greater than 500 kilowatts and will be sited on a tract containing primary agricultural soils as defined in 10 V.S.A. § 6001, the Agency shall appear as a party and provide evidence and recommendations concerning any findings to be made under subdivision (b)(5) of this section on those soils, and may provide evidence and recommendations concerning any other matters to be determined by the Commission in such a proceeding. (emphasis added).”
Defines “agricultural activities” within the general definitions section applicable to the Public Utilities Commission:
“‘Agricultural activities’ means a commercial agricultural, silvicultural, or aquacultural facility or pursuit conducted, in whole or in part, including the care and production of livestock and livestock products, poultry and poultry products, apiary products, and plant and animal production for nonfood uses; the planting, cultivating, harvesting, and processing of crops; and the farming or ranching of any plant or animal species in a controlled salt, brackish, or freshwater environment.”
Specially defines “agricultural producers” as eligible for time-of-use rate incentives for off-peak electricity use:
“As used in this section, “agricultural producer” means any person or corporation whose principal purpose is the agrarian production of food or fiber.”
- Farmland Protection Policy Act (FPPA) (Public Law 97-98, December 22, 1981). The FPPA does not authorize the federal government to regulate the use of private or nonfederal land or affect the property rights of owners of such land.
- FPPA definitions: 7 CFR § 657.5
- United States Department of Agriculture, Economic Research Service, 2017 Census of Agriculture