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Massachusetts SMART Program Regulations: More Solar Capacity, Less Land Area

On April 14, the Massachusetts Department of Energy Resources (DOER) filed emergency regulations governing its SMART (Solar Massachusetts Renewable Target) program, the state’s current solar incentive program. Among other changes, the new rules alter the criteria for land use and project siting as Massachusetts continues its trend towards discouraging the use of greenfield sites—especially ecologically valuable ones—in favor of properties that are already impacted by development.

Key Takeaways

  • The regulations double the size of the state’s SMART program from 1,600 MW of new solar generating capacity to 3,200 MW.

  • By prohibiting the siting of most new SMART program ground-mounted solar projects on land deemed necessary for the protection of key Massachusetts species and ecosystems, the regulations further steer solar development away from greenfields, towards already-impacted sites.

  • Separately, DOER is also offering a six-month extension for all projects applying to participate in the SMART program between April 15, 2020 and July 1, 2020 due to the COVID-19 pandemic.

Land Use Restrictions for Solar Development

In order to be eligible for participation in the SMART program, solar projects must meet certain land use and siting criteria. These criteria are nuanced, and it is important to carefully assess a given location to determine its eligibility for the SMART program, as well as any considerations related to local permitting and available incentive levels.

The SMART program already excludes certain areas from solar development. For example, solar projects cannot be sited on specified wetland resource areas (i.e., certain beaches, dunes, marshes, as defined by 310 Mass. Code. Regs. 10.04) or on properties listed on the Massachusetts Register of Historic Places unless authorized by the impacted state and/or local government entities (although as we have previously reported, a town’s Historic District Commission may not have the last word on when solar permitting is proper). Many solar projects on permanently protected open space – land held by a governmental conservation, park, water supply, forest, or agricultural agency – under Article 97 of the Massachusetts Constitution also are not eligible for participation in the SMART program.

In addition to these prior restrictions, under the revised SMART regulations, land identified by the Massachusetts Division of Fisheries and Wildlife (MassWildlife) as necessary for the protection of key Massachusetts species and ecosystems also is ineligible for most new SMART program solar development. The newly restricted areas are based on MassWildlife’s BioMap2 framework, a biodiversity conservation mapping tool, as well as MassWildlife’s Priority Habitat map database. Both BioMap2 and the Priority Habitat maps combine historic species data with geospatial data to identify which areas within the Commonwealth are essential for the protection of Massachusetts species.

Under the new regulations, most new ground-mounted solar projects (excluding certain ground-mounted solar projects on brownfields, landfills, and previously developed land) cannot be sited on parcels with 50% or more of its area designated as one of the following three classifications:

  • Core Habitat: Critical areas for the long-term persistence of MassWildlife listed rare, endangered, and threatened species as well as a diversity of exemplary natural communities and intact ecosystems in the Commonwealth, as identified in MassWildlife’s BioMap2.

  • Priority Habitat: The geographic extent of habitat for MassWildlife-listed rare, endangered, and threatened species as delineated in MassWildlife’s Priority Habitat map database.

  • Critical Natural Landscape: Areas identified in MassWildlife’s BioMap2 as providing habitat for a wide range of native species, supporting intact ecological processes, maintaining connectivity among habitats, and enhancing ecological residence. Critical Natural Landscape include buffering uplands around coastal, wetland, and aquatic Core Habitats.

The solar industry has expressed concerns that, although the revised regulations double the SMART program’s capacity, the increased restrictions on land use may constrain the development of new solar projects to actually fill that increased capacity.

Discouraging Greenfield Development

Under the SMART program, the type of land on which a project sits also plays a role in how much compensation a solar project owner can receive for solar power. In order to incentivize development on already-developed land, the SMART program reduces potential compensation for power generated from certain solar projects sited on greenfields (i.e., undeveloped land). Specifically, existing 50 – 5,000 kW solar projects sited on land that (a) has not been previously developed and (b) is zoned for commercial and industrial development are subject to a compensation reduction corresponding to the acreage of impacted land. On the other hand, the following types of projects are not subject to any reduction in compensation, based on their location and limited potential impacts to undeveloped land:

  • Building mounted solar projects.

  • Agricultural solar projects, defined as projects that “allow[] the continued use of the land for agriculture” on land defined by the U.S. Department of Agriculture as “Important Farmlands” or land enrolled in a Massachusetts agricultural preservation program (although, under MDAR’s current guidance, land with an Agricultural Preservation Restriction is typically subject to a capacity cap that effectively bars commercial solar development).

  • Ground-mounted solar projects with a capacity of 500 kW or less and ground-mounted solar projects with a capacity of 500 – 5,000 kW on non-agricultural land that has already been developed.

  • Ground-mounted solar projects with a capacity of 500 – 5,000 kW on non-agricultural land that is located within a solar overlay district.

  • Ground-mounted solar projects with a capacity of 500 – 5,000 kW on non-agricultural land that comply with local zoning regulations that expressly address power generation.

  • Solar projects sited on brownfields and landfills approved by the Massachusetts Department of Environmental Protection for solar development.

Notably, the new regulations also clarify that existing floating and canopy solar projects sited on any type of land are not subject to a compensation reduction. The potential impacts to underlying land from these types of projects are relatively minimal: floating solar projects are defined by the regulations as located on a body of water that was or is used for water treatment, agricultural or industrial activities, while canopy solar projects are defined as installed on the top of an existing structure such as a pedestrian walkway or parking surface. By clarifying that floating and canopy solar projects are not subject to a compensation reduction, the new regulations further incentivize solar projects with limited direct impacts to land.

Under the revised regulations, new solar projects (existing projects are largely unaffected) sited on non-agricultural land owned or operated by a municipal or governmental entity will not be subject to a reduction in compensation. Nor will compensation be reduced from new solar projects on privately-owned non-agricultural land where the municipality either owns or operates the solar project, or has received rights to the project’s output. On the other hand, new ground-mounted solar projects between 500 – 5,000 kW sited on agricultural land that are sited within a solar overlay district or comply with local zoning that expressly addresses power generation, will be subject to a compensation reduction.

Implications

Given the changes to the SMART program regulations, it is paramount that landowners and solar developers assess target properties to ensure eligibility before embarking on a new project. Developers and landowners also may want to consider taking advantage of new flexibilities to increase revenue, such as the use of floating and canopy installations. As solar expands in Massachusetts, land use considerations are of increasing importance.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 176

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About this Author

Brian C. Levey Real Estate Attorney Beveridge & Diamond Boston, MA & Framingham, MA
Principal

Brian has more than 20 years of project development experience before permit-granting authorities and in court.

Permitting

Brian's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...

617-419-2333
Brook Detterman Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Principal

Brook's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to navigate domestic and international climate change programs, develop renewable energy projects, and generate carbon offsets.  He helps his clients to negotiate, structure, and implement transactions related to carbon offsets and renewable energy, and works with clients during all phases of renewable energy and carbon offset project development.  Brook also represents clients during complex environmental litigation, having served as litigation and appellate counsel during dozens of proceedings in state and federal courts across the country. 

Prior to joining the firm, Brook was an associate in the environmental department of a large international law firm.

Brook served as a law clerk at the U.S. Department of Justice, Environment and Natural Resources Division, where he worked on a range of legal issues arising under federal environmental law, including Clean Water Act (CWA) wetlands jurisdiction, liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA) compliance, and National Environmental Policy Act (NEPA) requirements.

Brook also maintains an active pro bono practice, counseling individuals and non-profit entities on a range of legal matters in Massachusetts.

SERVICE AREAS & INDUSTRIES

  • Air, Climate Change
  • Litigation
  • Renewable Energy
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Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Hilary maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors.

She joined the Firm following her graduation from the University of Maryland Francis King Carey School of Law (UM Carey Law). 

While at UM Carey Law, Hilary served as a law clerk in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Water Enforcement Division, and served as Articles Editor for the Maryland Law Review. She also worked in the University of Maryland’s Environmental Law Clinic to...

202-789-6086