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Farmland Solar Policy Design Toolkit

State & Local Governance

Topics

Understanding Existing State & Local Regulatory Structures

Structural differences in state governance mean there is no single way that states regulate solar development, or write farmland protections into state laws and regulations.

Some states have implemented comprehensive solar development rules addressing siting considerations, metering, interconnection, and rate design for small, medium, and large-scale arrays in a variety of locations. Other states have made few changes to existing land use and energy permitting laws to address the expansion of distributed energy resources.

However, as the desire for solar generation capacity steadily increases, each state is likely to face the tension between energy development and agricultural uses, and strategies for farmland protection to address this tension are developing rapidly. The criteria for approving new solar arrays, and the conditions placed on their construction and operation, vary widely from state to state.

State solar siting policies “live” in many different places within state law.

Siting requirements may be found in state land use and energy permitting laws requiring a certificate of approval from state siting boards. They may be found in state public utility commission regulations regarding solar net-metering programs and feed-in tariffs for commercial scale solar development, as well as in department of revenue rules for “current use” and property taxation. Stand-alone state laws can also establish special rules for solar development or farmland protection.

A variety of state agencies may have authority over agriculture, energy, land use, and economic development.

The US electric industry comprises over 3,000 public, private, and cooperative utilities, more than 1,000 independent power generators, and over 700,000 homes and businesses with onsite solar generating systems. 13 There are three regional synchronized power grids, eight electric reliability councils, about 140 control-area operators, and thousands of separate engineering, economic, environmental, and land-use regulatory authorities.

— Lazar, J. (2016). Electricity Regulation in the US: A Guide. Second Edition. Montpelier, VT: The Regulatory Assistance Project.
Public Utility Commissions

State public utility commissions (also called public service commissions or boards) regulate how electric service is provided to customers, and the rates charged for electricity. They often develop regulations about how state energy goals are met, establish rules for net-metered solar arrays and approve other energy tariffs for solar development.

Agencies of Agriculture

State agencies of agriculture are usually responsible for making rules related to farming, farmland, forestry, and food. How each state defines categories of farmland within existing state agricultural laws may provide a basis for creating rules for solar development for these categories.

Agencies of Natural Resources or Environmental Protection

State natural resource agencies are often delegated broad authority over water and air quality, soil health, wildlife, and land management. Solar arrays may require one or more natural resource management permits addressing wetlands protection, erosion, land disturbance, and stormwater management. State natural resource agencies are also well-suited to identify alternate sites for solar development, including brownfields, landfills, superfund sites, and previously developed land.

Many Others

Other state agencies, including the departments of energy and taxes, may also be active players in solar policy development and implementation.

The role of municipal and county governments in solar development differs across states.

The Constitution of the United States does not provide for local governments. Rather, the 10th Amendment to the Constitution gives states broad authority over any non-federal matters, including the power to create and delegate authority to subdivisions of government, like municipal corporations. Relationships and divisions of authority between state, county, and municipal governments are incredibly diverse across the United States.

Sometimes, state legislatures delegate broad powers to municipalities to regulate local land uses, and solar arrays will need permits from a variety of local building, planning, zoning, and conservation boards. Other states delegate power over energy infrastructure, including land use considerations, to the state public utility commission, leaving little role for municipalities in regulating solar development.

State constitutions vary in the level of power they grant to local governments. Generally, “Dillon’s Rule” holds that a municipal corporation can exercise only the powers explicitly granted to it, and if there is a reasonable question as to whether a power has been conferred to a local government, then it has not. In “Dillon’s Rule” states, municipalities may have limited power to regulate solar arrays outside of the land use authority already delegated by the legislature. Other states have adopted “home rule” laws that confer greater authority and autonomy to local governments, including towns, villages, municipalities, and/or counties. In these “home rule” states, municipal governments may enact ordinances regulating solar development even without the express legislative direction, so long as they do not conflict with state law.

Additional References

 

  1. Tanuj Deora, et al., Distributed Energy Resources 101: Required Reading for a Modern Grid,  Advanced Energy Economy , Feb. 13, 2017 (https://blog.aee.net/distributed-energy-resources-101-required-reading-for-a-modern-grid)
  2. National League of Cities, Cities 101: Delegation of Power, Dec. 13, 2016, https://www.nlc.org/resource/cities-101-delegation-of-power (Accessed Feb. 5, 2020).

 

How do State & Local Authority affect Farmland Solar Policy?

Different state governance structures require different approaches to farmland solar policy development, policy advocacy, and policy change.

State review.  Some states prohibit local municipalities from regulating solar development, and municipal zoning and permitting processes are preempted by a state-level siting board. Approval for a solar installation comes from one or more state agencies, not a municipality.  In these states, policy change is most likely to occur through legislative advocacy and participation in relevant agency rulemaking processes.

Local review.  In other states, approval for a solar installation is granted by a town or county, through local planning and zoning permitting processes. The state may direct local governments as to the content of zoning ordinances applicable to solar installations, or prevent the “unreasonable” regulation of solar energy, but final approval is left to municipal boards.  In these states, smart farmland solar policy can be promoted through creation of model solar bylaws and ordinances that individual communities can choose to adopt or modify. State laws that regulate the implementation of zoning by local governments can also be changed to improve solar development policy.

Hybrid authority.  States may also divide authority over solar development between the state and locality. For example, a state level siting board may be responsible for approval of larger projects or those with expected impacts to natural resources, while smaller projects are left to local approval processes. In these states, a hybrid approach to policy advocacy may be necessary, targeting state legislation, administrative regulations, and creation of model municipal laws to advance farmland solar policy.

The Rhode Island Energy Facility Siting Board has authority over solar arrays over 40 MW. Municipalities have jurisdiction over solar siting approval for arrays less than 40 MW, or the vast majority of solar arrays in the state. This municipal process is directed in part by the Office of Energy Resources, which created a statewide solar permit addressing building and electrical approvals that must be used for all solar projects in all municipalities. 300-RICR-00-00-3 (2018). Solar projects must also comply with other state land use laws and municipal zoning ordinances. The Statewide Planning Program & Office of Energy Resources created a model solar ordinance for use by municipalities. Rhode Island has not developed specific regulations for siting solar arrays on farmland.

Vermont’s comprehensive energy siting statute, 30 V.S.A. § 248, rolls all land use and energy permits into a single Certificate of Public Good, issued by the Public Utility Commission (PUC), who has sole siting and approval authority for proposed solar projects in the state. It requires the PUC to consider impacts to prime agricultural soils, for all ground-mounted solar projects over 15 kW. For ground-mounted solar projects 50 kW or larger, the Vermont Agency of Agriculture Food and Markets receives notice of a proposed project’s PUC application or petition. The Agency has the right to appear at the PUC hearing for projects between 15-500 kW, and must appear if the system is greater than 500 kW and located on agricultural soils. Conditions for the protection of agricultural soils can be included in the project’s Certificate of Public Good.

The Connecticut Siting Council has jurisdiction over solar energy generation projects greater than 1 MW, and municipalities approve smaller solar projects.  C.G.S.A. §10-50i(a). When solar arrays of at least 2 MW are proposed for prime farmland, the Department of Agriculture must represent in writing to the Siting Council that the project “will not materially affect the status of such land as prime farmland.” C.G.S.A § 16-50k(a)(B)(iii).

Additional References
  1. Analysis of individual local government ordinances is outside the scope of this report. For excellent examples of local energy ordinances, see the Sustainable Development Code: https://sustainablecitycode.org/chapter/chapter-7/

Using State Law to Improve Farmland Solar Policy

All states will benefit from the following basic guidelines for smart farmland solar policy:

→  Follow principles for smart farmland solar development.

While every state and community may have different priorities for solar development and farmland protection, the following principles can help guide policy action:

            • Identify and engage stakeholders early in the policy-making process.
            • Maximize the potential for solar energy production while minimizing impacts to the most productive farmland.
            • Guide solar development to land with the least impact on agriculture and other natural resources.
            • Identify preferred sites for solar development, both by generic site-type and through use of GIS and parcel-specific data.
            • Avoid the term “Solar Farm” in law and policy.
            • Define important state and local farmland to protect.
            • Create different administrative processes and approval criteria for different scales of solar development (for example, arrays greater and less than 1 megawatt in capacity)
            • Create different administrative processes and approval criteria for solar development located on different site-types (for example, prime farmland, brownfields, and residential roof-tops).
            • Specify a regulatory pathway for solar development intended primarily for on-farm use.
            • Prioritize or incentivize siting on unproductive land and previously disturbed areas.
            • Require developers to follow construction and decommissioning guidelines to protect soil health and active agricultural use for the future.
            • Encourage dual use or agrivoltaic solar arrays that co-locate solar arrays with active farming.

Rhode Island’s “Principles for Renewable Energy Siting” include specific provisions for farmland protection and redevelopment of disturbed sites: 

        • “Provide predictability, consistency and fairness in state and local rules, regulations, zoning and ordinances to support development of renewable energy projects.”
        • “Encourage renewable energy development on commercial and industrial zoned land, on already developed land, and in other locations with environmental alterations such as closed landfills, brownfields, parking lots, commercial and residential rooftops, sand and gravel pits.”
        • “Support the economic viability of farms through appropriate renewable energy development as a complementary use in a manner which keeps farms in agricultural production while preserving agricultural soils.”

→  Take advantage of existing divisions of labor and expertise among government agencies.

Successfully protecting farmland and promoting agricultural land uses within solar development policies requires knowledge of state agricultural land characteristics, as well as familiarity with agricultural soils and impact mitigation strategies. States can take advantage of the expertise of agencies of agriculture in developing and implementing criteria for solar development on agricultural land, and in project review and approval. At the local level, soil and water conservation districts, agricultural districts, and local boards may provide sources of authority and expertise.

Similarly, inserting farmland protection or land use requirements into net-metering programs or rules for grid interconnection requires the involvement of state public utility commissions, departments of energy, and energy utilities.

State agencies play a variety of roles in solar siting and permitting processes, and lawmakers should consider how existing government structures can contribute to smart farmland solar policy development.

→  Establish preferred sites for solar development, both by generic site-type and through use of GIS and parcel-specific data.

Some states are working to direct solar development away from farmland and other “greenfields” by providing an incentive or requirement for locating projects on other types of land or structures. Preferred siting incentives may be based on project size, design, or location. These policies are generally not stand-alone laws, but are located within and interact with each state’s permitting, metering, and interconnection laws and regulations. Lawmakers and regulators should work to identify site-types that are preferred for solar development (landfills, brownfields, structures, etc.) and assist localities in identifying specific parcels of land where solar development is uncontroversial.

→  Encourage “agrivoltaics,” or the dual use of farmland for solar energy production co-located with active farming.

A dual use policy allows, incentivizes, or requires a solar array on farmland to exist alongside agricultural uses, so that the land is used both for energy generation and farming concurrently. For example, a solar array may be designed to permit animal grazing or vegetable production below or beside the solar panels.  Dual use policies can also provide a basis for allowing solar installations on agricultural land enrolled in state “current use” taxation programs, without triggering tax penalties for land conversion.

→  Consider both farmland protection and farmer access to clean energy within key areas of state law.

This Toolkit identifies different areas of state law into which smart farmland solar policies can be built. As lawmakers seek new ways to prohibit, restrict, condition, or promote solar development on certain agricultural lands, each of the key regulatory areas below should be considered as both independent and interrelated policies and programs.

              • Renewable Energy Procurement Mandates
              • Renewable Energy Compensation Mechanisms
              • Interconnection Rules
              • Siting, Land Use, and Energy Permitting
              • Current Use Taxation