DEEP Issues Draft Guidance on Siting Solar Projects on Agricultural Lands: Virtual Public Meeting on August 16; Written Comments Accepted through August 30

In July of 2023, the Connecticut Department of Energy and Environmental Protection (DEEP) released Draft Guidance through its Sustainable, Transparent, and Efficient Practices (STEPS) for Solar Development public engagement process.  The document focused on best practices for siting solar projects on agricultural land.  Shortly thereafter, DEEP withdrew the document and indicated that it would be re-released with further amendments.  That document, Draft Guidance for Siting Solar on Agricultural Land (Draft Guidance), was publicly re-released on August 10, 2023.  DEEP will have a public presentation to introduce the Draft Guidance on August 16, 2023, and the public will have an opportunity to comment on the Draft Guidance until August 30, 2023.

DEEP, in connection with the Department of Agriculture (DoAg) recommends the dual use of farmland for agriculture and solar whenever solar projects are to be sited on productive agricultural lands. DEEP’s Draft Guidance should be used in conjunction with DoAg’s “Solar Energy Project Consideration Guidance.” Through the Draft Guidance, DEEP and DoAg are encouraging the use of Agrivoltaics, which is defined as the co-use of agricultural land for primary agricultural production and for electrical generational from photovoltaic (PV) panels.

Agricultural use can include livestock grazing, row crops, fruit crops, older apple orchards, and vineyards. The solar panels can be installed on the roofs of greenhouses, barns or in fields where crops can be grown under the panels or livestock can graze around them. The departments are encouraging strategic solar development that will maximize biomass production and soil quality while minimizing alterations to existing vegetation. Specifically, the departments strongly discourage the use of “prime farmland,” mapped on this GIS and defined by 7 C.F.R. 657.

If the solar panels must be placed on prime farmland, a Certificate of Environmental Compatibility and Public Need from the Connecticut Siting Council will be necessary for all projects greater than 2 MW unless DoAg issues a letter of No Material Effect. Similar rules and guidelines apply to impacts to “Core Forest,” as defined by the Connecticut General Statutes Section 16a-3k, and projects greater than 2 MW in size must obtain either a Certificate or a No Material Effect letter from the DEEP Forestry Division.

Solar projects also require a Stormwater Permit from DEEP, along with a letter of credit to ensure stormwater controls are properly maintained. This permit also generally requires a 100-foot buffer between the facility’s footprint and any adjacent wetlands or watercourses. Solar developers should assess impacts on aquifer protected areas and the public water supply watershed and any consultations with water utilities. Also, before DEEP can issue the Stormwater Permit, an applicant must submit a Final Determination Letter from the DEEP Natural Diversity Data Base Program attesting to the presence or absence of State-listed Endangered, Threatened, or Species of Special Concern at the project site and specifying any necessary mitigation measures.

Of course, developers must also ensure agricultural sites have sufficient Hosting Capacity and must consider any necessary infrastructure upgrades that the project may require. The projects must apply for interconnection with the local electric distribution company.

In addition to these existing siting requirements, the departments expect to see certain project attributes with Agrivoltaics. The departments and the Siting Council expect dual use for the duration of solar installation if present when the project begins. Developers should focus on farm rooftops, irrigation ditches or other land not well suited for agriculture when deciding on solar placement, or if ground-mounted, on the least productive or most degraded farmland. Soil health should be protected, particularly during construction and decommissioning. Developers should avoid installation that would threaten displacement of farmer-renters as well. Site access and water access for grazing and vegetation must be considered. Finally, pollinator plant species should be established either between the perimeter fence and the limits of construction disturbance areas or where grazing animals are not placed.

Developers can use the programs CT Farmlink and New England Farm Finder for suitable agricultural sites. Other recommendations provided by the departments to not materially affect lands that may be considered prime farmland include the following:

1. Soil disturbances should be minimized, especially during construction and decommissioning, and a vegetation and soil management plan should be developed for the lifetime of the solar project.
2. The solar array should not interfere with the continued use of the land beneath the canopy for agricultural purposes.
3. The height and spacing of panels should accommodate crop-specific needs for sunlight, farm machinery, and worker accessibility.
4. Rows between panels should be made as wide as necessary to accommodate the current agricultural use.
5. If grazing animals are proposed, DoAG’s Requirements for Solar Grazing should be followed.
6. The farmer/farmland owner should be engaged as a partner; installing solar on land that would displace farmers who are renting/leasing the land should be avoided.
7. The need for access to and from the site for vehicles with trailers and other livestock grazing or farming equipment should be considered.
8. Parties should plan for access to water for grazing or vegetation.
9. All dual use plans should be fully implemented and operational for the duration of the solar installation.

In addition to noting these recommendations from DEEP and DoAg, prospective solar developers should note that recent changes resulting from the 2023 legislative session will place greater requirements on decommissioning. Per amendments to section 16-50k(a) of the General Statutes, the Connecticut Siting Council will now require a decommissioning bond at the end of a project’s generating life to cover all costs of decommissioning for projects that are greater than 2 MW in nameplate capacity and are located on prime farmland.  These bonds will serve to fund the restoration of all prime farmland to productive agricultural use. Such restoration will include inspection by a qualified soil scientist or other agricultural soils professional. 

As indicated above, DEEP will hold a virtual public meeting to present the Draft Guidance on August 16, 2023, and will accept written comments on the Draft Guidance by August 30, 2023.  More information on the public meeting and the comment process can be found here.

For any further questions, please contact your Pullman & Comley attorney or Lee D. Hoffman at 860-424-4315 or lhoffman@pullcom.com.