A working group convened by highly debated 2022 legislation to hammer out the details of new regulations for the siting of solar projects on farm and forest lands failed to reach a consensus on most of what it was brought together to debate.
The regulatory advisory panel created by House Bill 206 delivered its report to the General Assembly on Dec. 1 in a 717-page document that included a discussion of 41 proposals around definitions, processes, and who should be involved with implementing the new regulations.
The workgroup reached a consensus on only four of those proposals and came close to a consensus on 14. But on 23 — more than half of those considered — they remained deadlocked.
Republican Del. Michael Webert, R-Fauquier, sponsored the 2022 legislation, which stated that solar projects that disturb more than 10 acres of prime agricultural soils or more than 50 acres of contiguous forest lands create a significant adverse impact and must provide a mitigation plan.
The bill relied on the U.S. Department of Agriculture’s definition of prime agricultural soils, which refers to soils that, through their physical and chemical composition, have high production capabilities without needing pesticides or fertilizer. Forest lands were similarly defined by state code.
The legislation arose out of an ongoing conflict between the goals of the Virginia Clean Economy Act, which aims to decarbonize the state’s electric grid by 2050, and those of the farming and forestry sectors, which are concerned with preserving their lands. The VCEA mandates the development of 16,100 megawatts of solar. But because the renewable source is land-intensive — producing one megawatt of solar on average requires between five and 10 acres — it has given rise to tensions with agriculture and forestry, the state’s largest land-covering industries in the state.
The work group appears to have fallen short of resolving those conflicts. The report and interviews with members show discussions became bogged down on a range of issues, including definitions such as what constitutes a parcel of prime agricultural soil.
In particular, the solar industry has complained the law, and new regulatory proposals single out solar farms for greater scrutiny than other development projects, like residential neighborhoods.
Webert argued that wasn’t the case, pointing to localities’ comprehensive plans — which are not binding — as an example of rules dictating where housing can go.
“The localities have a very large say [on] where that goes,” Webert said.
Chris Miller, president of the Piedmont Environmental Council and a proponent of Webert’s bill, said, “no one’s arguing about the need for solar. This is about protecting a resource in Virginia.”
Besides failing to overcome policy disagreements, participants complained the state’s Freedom of Information Act rules governing public meetings stymied members from making headway on negotiations outside of the workgroup meetings.
“This was not supposed to be this complicated, but it got complicated real quick,” said Chip Dicks, a workgroup member representing the Chesapeake Solar and Storage Association.
Nikki Rovner, associate state director for the Nature Conservancy and a proponent of the legislation, said the group’s work should be seen as “more of a discovery exercise.”
Consensus “is what will happen next when the task is to write a regulation,” she said.
A sprawling group
The work group comprised 94 members, with 41 primary members and 24 alternates from groups representing agriculture and forestry, the solar industry, environmental groups, utilities, local government, and other interests.
Twenty-nine subject matter experts and representatives of local governments also participated. DEQ administered the panel and enlisted the Institute for Engagement and Negotiation at the University of Virginia to facilitate the discussion at a cost of $97,000.
“It’s one of the largest work groups I’ve personally been a part of,” Webert said.
Members were assigned to five different subgroups to devise different parts of the regulation, such as sections dealing with avoidance and minimization, mitigation, definitions of significant impacts, and local control.
Altogether, the full workgroup met five times between June and September before producing the 717-page final report, a length DEQ Director of Air and Renewable Energy Mike Dowd said was “not common.”
“I think that speaks volumes of the very complex nature of the process we are going through,” said Dowd.
Consensus and no consensus
The group did agree on the definition for avoiding adverse impacts on prime agricultural soils or forested lands.
Members also agreed to ask a Virginia Cooperative Extension work group to propose an approach for verifying prime agricultural soils and forests, require DEQ to provide a copy of any notices of intent submitted by developers to localities and direct the Virginia Department of Energy to create a guidebook on best practices for solar development.
An agreement was more difficult on several other proposals related to expanding what it means to “disturb” land and “minimize” impact, requirements for mitigation plans and how payments made instead of mitigation efforts would flow.
Complicating the debate was the view among solar groups such as the Mid-Atlantic Renewable Energy Coalition that the law’s presumption that solar projects have significant adverse impacts on prime agricultural soils and forest lands is incorrect.
There also was disagreement over the meaning of “contiguous” lands, which some work group members said should not include swaths of forest that are connected only by a thin line of trees, such as buffers. Solar groups said including buffers in the calculation of acres that would trigger regulatory requirements could lead to many more forest lands being subject to such oversight.
Rovner of the Nature Conservancy pointed to the environmental benefits of forested land, including buffers, saying, “Water quality [protection] and carbon sequestering are provided regardless of whether part of the forest acreage is in the form of a buffer.”
Some work group members raised concerns that new regulations will complicate Virginia’s solar permit-by-rule process, which is meant to accelerate state-level approval for solar farms with a capacity of up to 150 megawatts.
“It’s got to be an easy process with a short checklist,” said Dicks, who also argued that mitigation requirements need to be reasonable enough not to deter developers.
“Does [mitigation] have to be in the same county? Can it be somewhere else?” Dicks said.
But whereas solar advocates were concerned about overburdening developers, farm and conservation groups emphasized the importance of protecting the quality of prime agricultural land.
Martha Moore, senior vice president of governmental relations for the Virginia Farm Bureau, argued the environmental impacts of solar are significant enough to require mitigation. Once the top layer of prime agricultural soil is disturbed, the land’s crop production value declines, she argued.
Consequently, any developer who wants to convert land back to agricultural use later is “already behind,” Moore said.
Given the group’s inability to reach a consensus on a host of issues, DEQ is looking to reconvene the body unless there are any changes to the legislation governing it. A final regulation is due by December 2024.
Webert said he wasn’t aware of any legislation that would change HB 206 and said ultimately, DEQ or the General Assembly will have to determine the proper balance between competing interests.
“When each faction is vying for a limited resource, [then] consensus is going to be harder to reach,” Webert said.
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