American Farmland Trust (AFT) would like to thank the Virginia Department of Environmental Quality (DEQ) for their work on the proposed regulations to implement Virginia HB206, and for inviting this written comment in response.

Since the 1980s, AFT has been working “from kitchen table to Congress” in Virginia and nationally to save the land that sustains us by protecting farmland, helping farmers adopt environmentally sound practices, and keeping farmers on the land. AFT recently embarked on Regenerate Virginia, an ambitious action plan and forward-looking vision for agriculture. One of the strategies included is to advance Smart Solar to support farmers and rural communities.  

Solar energy development is taking place in the context of a continuing national trend of farmland loss. In AFT’s 2019 Farms Under Threat the State of the States report, AFT found that between 2001 and 2016, 11 million acres nationally were lost or threatened by high- and low-density residential development. In Virginia, 340,000 acres of farmland were developed in that period. If recent trends continue, nearly 600,000 acres of Virginia’s farmland will be paved over, fragmented, or converted to uses that jeopardize agriculture—that's 7%. Virginia can reduce conversion, protect farmland, and safeguard the future of agriculture and the environment by choosing smart growth, including Smart Solar.

Solar is a cost-competitive form of energy that is being developed to decarbonize the electric grid—and much of it is being sited on farmland. According to a 2021 DOE study, solar energy may occupy 10.4 million acres by 2050 with 90% expected in rural communities. Further modeling done by AFT, through its Farms Under Threat: 2040 analysis, projects that without policy intervention 83% of new solar development nationally will take place on agricultural land, with almost half on our most productive land for producing food and other crops.

Virginia is experiencing significant growth in solar development. According to a LandGate analysis, in August 2023 solar arrays under operation or under development would occupy 10,000-20,000 acres and the Nature Conservancy anticipated 161,000 acres of land would be needed to meet Virginia’s 2020 Clean Economy Act (VCEA) solar target of 16GW. Most of this new solar development will be concentrated in rural communities with favorable siting characteristics—flat, open, and sunny land with grid interconnection near energy demand—some of which already face high rates of farmland conversion. And the majority will be utility-scale projects that require hundreds or even thousands of acres.

This solar growth can provide important financial benefits in the form of long-term leases for landowners and tax revenue for rural municipalities. But it is also raising concerns about the displacement of farmer-renters outcompeted by solar developers and the impacts to the local farm economy from large-scale conversion of productive farmland in host communities for 25-40 years or more. Farms are anchor businesses in rural communities, not only providing food, fuel, and fiber but also supporting an ecosystem of businesses such as feed and seed dealers, equipment purveyors, and veterinarians. Supporting farm viability and keeping land in production to continue this local economic activity is critical to enhancing rural vitality as solar development expands in the Commonwealth.

Earlier this year, AFT surveyed 240 Virginia farmers representing all major production systems and scales in 78 counties to learn about their attitudes towards solar development. These results will be made public in 2025. While 47% of respondents shared concerns that climate change and extreme weather would continue to have a negative impact on their farming operation, Virginia farmers also responded with worries about having enough land to grow food and remain commercially viable. And 64% of farmers who responded to AFT’s survey thought solar should never be sited on the most productive farmland.

All of these concerns are slowing or halting proposed solar projects across the country, and are threatening the timely achievement of Virginia’s climate goals.  AFT has developed four Smart Solar Principles that are designed to help ensure that solar development strengthens farm viability and rural vitality to get projects built. These principles are:

• Prioritize siting on the built environment and contaminated (e.g., landfills, brownfields) and marginal land;
• Safeguard the ability to use land put into solar for farming by protecting soil health, especially during high disturbance times of construction and decommissioning;
• Expand development of agrivoltaics projects which integrate agricultural production into solar arrays; and
• Promote farm viability and equity by ensuring farmer engagement and shared benefits.

In 2022, Virginia passed HB206 into law to minimize conversion of prime farmland and mitigate impacts to the local farm economy as the state advances towards its clean energy goals. This and all the work that has followed represent essential steps in advancing Smarter Solar projects in Virginia. As proposed, the regulations address some of these principles. With a few adjustments, they could help to achieve all of them. Below are AFT’s recommendations for how to shape the proposed regulations to advance a Smart Solar buildout in Virginia:

• Retain Robust Proposed Mitigation Fees. Keep the robust proposed mitigation fee amounts, and regularly review and revise the fees to ensure this program is enabling Virginia to meet its climate goals while steering development to locally preferred areas and mitigating impacts to farm economies in host communities.
• Differentiate Fee Reductions for Ecovoltaics and Agrivoltaics. Ecovoltaic (e.g., pollinator habitat) and agrivoltaic (grazing and crop production) projects incur different costs to implement and provide different benefits to the host community. Providing a lower (e.g., 5%) fee reduction for ecovoltaic projects will be important to incentivize this beneficial activity while still collecting enough funding to mitigate impacts in host communities.
• Properly Incentivize Agrivoltaic Projects. Define agrivoltaic projects in the regulations and provide fee reductions that are sensitive to the cost of integrating the agricultural production system into the solar array. Only implement these fee reductions when DEQ has the ability and capacity for continual monitoring and verification throughout the life of the project, with enforcement— including clawbacks—if agricultural production stops.
• Reduce Soil Health Mitigation Ratios. Significantly reduce the proposed fee reductions for soil health activities. Make these activities requirements for receiving a permit, with minimal fee reductions if needed to incentivize them while still collecting enough funding to mitigate impacts.
• Close Loopholes. Remove the language that would eliminate the mitigation fee for “innovative alternatives to the required mitigation… including restor[ing] the characteristics of prime agricultural soils.” This is very difficult to achieve and creates a loophole that would reduce the ability of host communities to mitigate impacts.
• Authorize the Department of Forestry’s Office of Working Lands to Administer Farmland Mitigation Funding in Conjunction with VDACS. Fees collected for farmland mitigation should be implemented by agencies that can invest in agricultural conservation easements and farm viability projects as close as possible to the host community.
• Plan for Contingencies. Direct applicants that choose the easement option to move to the in-lieu fee option should their attempt to secure an easement prove unsuccessful.

Maintain Proposed Mitigation Fees

Solar developers respond to market signals and look to their bottom line when making decisions about where to site projects. New solar developments are concentrated in communities with economically favorable siting characteristics. Designing mitigation programs with fees that send market signals to developers about which lands are preferable for siting will create projects that avoid and minimize impacts to host communities and get projects built. Adequate fees provide another important benefit—should the project need to be sited in the location that is less desirable to the community, the mitigation fees collected can meaningfully offset the impacts. According to the language in HB206, the programs’ aims are to minimize both conversion of high-quality farmland and impacts to the local farm economy. Adjusting the fee structure to achieve both of these goals is critical. 

In the draft regulations, DEQ proposed a per-acre fee floor of $3,000, and an increase to that fee should the difference between the assessed value and the agricultural value be higher. AFT applauds this approach of combining a floor—to provide consistency for developers—with a higher fee sensitive to more expensive land values. AFT encourages DEQ to retain these robust fees. This would fulfill the legislative intent of HB206 by discouraging solar development on prime farmland that Virginia communities and farmers prefer to keep in agricultural production. AFT also recommends regularly revising mitigation fee amounts to ensure they are enabling Virginia to meet its climate goals while steering development to locally preferred areas and mitigating impacts to host communities.

Another important way this mitigation program can result in locally-desirable projects is to provide incentives in the form of fee-reductions.  Any proposed fee reductions must be carefully designed to still achieve, and not undercut, the legislative intent for the mitigation program, including “the impact on the local agricultural or forestry economy when [prime] soils or lands are displaced”. In the draft regulations, the following reductions are proposed:

1. A 25% fee reduction for “managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation,”
2. 90%, 75%, and 50% fee reductions for not changing grade, preserving topsoil, and decompacting surface soils on cut/fill areas respectively, and
3. “Propos[ing] innovative alternatives to the required mitigation,” which “could include restoration of a degraded site to restore the characteristics of prime agricultural soils.”

These fee reductions could undercut the legislative intent of HB206 to mitigate impacts to prime soils and the local agricultural economy. AFT will respond to each in turn to suggest ways to strengthen their ability to still meet this legislative intent and advance Smart Solar.

Adjust Mitigation Fee Reductions to Increase Development of Agrivoltaic Projects

AFT defines agrivoltaics as active agricultural production integrated into modified solar photovoltaic arrays which stay in farming throughout the full life of the solar project. Agrivoltaics is a new, promising, rapidly evolving area of development that could keep land in production and support farm viability and rural economic vitality as solar advances.

But currently, agrivoltaics represent a minute share of projects in Virginia. This is mainly because agrivoltaic projects are often more expensive to construct and operate compared to conventional ground-mounted solar due to array changes that support a farm operation (e.g., elevated or spaced array configurations, increased racking costs, livestock fencing, and irrigation equipment). But with the right policies in place, this could increase significantly to keep land in production as solar development advances.

Agrivoltaic projects fall under the larger umbrella term of “dual use” which pair solar energy generation with another use. Another example of dual use projects include ecovoltaics, which pair solar with ecosystem services like pollinator habitat. DEQ currently proposes an equal 25% reduction in the mitigation fee for “managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation.” While pollinator habitat is beneficial, it, alone, does not mitigate impacts to the local farm economy. It is also less costly to establish pollinator habitat than to integrate most agricultural production systems into arrays. Therefore, AFT recommends a smaller fee reduction for ecovoltaic arrays (e.g., 5%) to cover the minimal costs incurred by purchasing seeds and to provide a small incentive for this beneficial use. This will ensure the host community does not relinquish too much of the funding it needs to mitigate the economic impacts of taking land out of production that go unaddressed by this type of dual use.

In order to effectively incentivize agrivoltaic systems, AFT recommends that DEQ update the regulations to add:

1. A clear definition for agrivoltaics, developed by the Virginia Department of Agriculture and Consumer Services (VDACS) in consultation with other agencies and stakeholders, that includes managed grazing and crop production,
2. Incentives, in the form of fee reductions, commensurate with the planned percent of the array in production and the level of cost incurred to integrate the production system—including a larger fee reduction for the integration of crops, and
3. Details around how DEQ plans to perform monitoring and verification to ensure agricultural production continues for the full life of the array, and enforcement mechanisms (including clawbacks and penalties) should the production cease.

Two potential limitations to successfully incorporating these recommended changes into the regulations are that 1) DEQ is implements HB206 through a permit by rule process where agency authority ends once the permit is issued, and 2) HB206 didn’t require the involvement of the VDACS. However, this is currently the only opportunity to incentivize agrivoltaic projects in Virginia while solar rapidly expands. Therefore, AFT recommends 1) taking any actions possible to add these three criteria into the regulations, and 2) delaying implementation of these agrivoltaic fee reductions until all three criteria are met. Given the rapidly evolving nature of this area of development, AFT also recommends that implementation is reviewed regularly to ensure agrivoltaic incentives are helping to achieve the goals of HB206.

While Virginia should develop its own agrivoltaic definition, to aid the Commonwealth in this effort AFT’s current recommended statutory definition for what should qualify for agrivoltaic incentives is:

“A solar array that is intentionally planned and designed with agricultural producers, and is constructed and operated to achieve integrated and simultaneous production of both solar energy and marketable agricultural products—including crop production, grazing, and animal husbandry—on the land beneath and between rows of solar panels, as soon as agronomically feasible after the commercial operation date and continuing until decommissioning. Systems that include pollinator habitat or apiaries as the sole agricultural use are excluded from this definition.”

In the future, supporting innovation and adoption of agrivoltaic projects in Virginia to meet the above goals will require 1) increased investment in research and demonstration projects to better understand agronomic impacts of integrating local production systems into solar arrays, 2) an incentive program that both covers cost increases incurred when developing agrivoltaic projects and which has the authority to enforce keeping land in production throughout the life of the array, and 3) a process, led by VDACS with agricultural and energy stakeholders including Extension, to develop a strong definition of what is agrivoltaic to qualify for  incentives. When the time comes to develop and implement these more detailed policies, AFT is at the ready to assist in doing so.

Decrease Fee Reductions for Activities that Don’t Adequately Address Impacts

Ensuring that soil health and productivity is not adversely impacted during construction, operation, and decommissioning is core to achieving AFT’s second Smart Solar principle. In AFT’s survey of Virginia farmers, protecting soils and soil health were a top concern—63% of farmers surveyed agreed for the need for developers to provide up front financing to fund decommissioning so land put into solar can be farmed again in the future.

AFT applauds DEQ for including incentives in the proposed regulations for engineering and installation considerations that will protect soil health and leave topsoil undisturbed. However, AFT believes that these should be regulatory requirements that all developers must follow when siting on prime farmland rather than activities that provide heavy discounts to important mitigation fees. Providing a modest fee reduction for these activities until regulatory standards are developed is beneficial. AFT recommends DEQ reduce the proposed fee reduction ratios significantly.

Another important reason to reevaluate these proposed reductions is that it is increasingly becoming standard practice for developers to use racking and panel structures that do not require extensive grading and/or removal of topsoil. While it may continue to be important to encourage the industry in this direction, offering a 90% reduction in the mitigation required for what may become a standard practice will undercut the entire program. Similarly, the proposed fee reductions for preserving topsoil and decompacting surface soils on cut/fill areas would leave communities unable to effectively mitigate impacts related to the loss of agricultural production. Given the rapidly evolving nature of this technology all fee reductions should be re-reviewed every two years to respond to emerging changes and needs in this area. 

DEQ also proposed allowing the applicant to undertake “restoration of a degraded site to restore the characteristics of prime agricultural soils.” This not only creates a loophole, allowing applicants to reduce or remove the required fee altogether without the input of experts and community members who stand to lose the opportunity for mitigation, it is also scientifically not possible. According to AFT’s soil scientists, the USDA “prime” soils designation is based on inherent soil properties independent of soil health management. If mineral soils are still present, management activities can be undertaken to make that soil highly functional, but even this process takes time, work, and scientific supervision. An applicant not only cannot “restore the characteristics of prime agricultural soils” through management, but restoring soil health would need rigorous, specific, and well-vetted monitoring requirements. Without greater detail, AFT is concerned that this provides a large loophole to applicants that both cannot be achieved, and which leaves impacts to the local economy unaddressed. AFT recommends removing this language from the proposed regulations. 

Provide More Details to Ensure Successful Implementation of the Mitigation Program

Mitigation programs must be implemented by an agency or accredited body that has the ability to effectively mitigate impacts, including in this case to the local farm economy. Additionally, mitigation should take place as proximate as possible to the impact. In the Commonwealth the farmland protection program is now administered by the Office of Working Lands in the Department of Forestry. AFT recommends that DEQ authorize this office, in conjunction with VDACS, to administer farmland mitigation funding for agricultural conservation easements and/or projects that will support farm viability in the host community (e.g., a local processing facility).

 AFT also urges additional detail and consideration regarding the proposed conservation easement program. For example, AFT recommends including a rule that, should the easement option be pursued and no easement come to fruition or be materially close to completion within a reasonable period of time, (e.g., 18 months), the applicant be redirected to the in-lieu fee process.

Thank you for inviting this comment. Please do not hesitate to be in touch either with questions or if AFT can provide assistance in achieving these shared goals in the future.