N.J. Admin. Code § 2:76-24.6

Current through Register Vol. 56, No. 19, October 7, 2024

Section 2:76-24.6 - Evaluation criteria

(a) When reviewing an application, the Committee shall determine whether the application meets the following criteria:

1. Factors for determining if the solar energy facilities, structures, and equipment interfere significantly with the use of the land for agricultural or horticultural production are as follows:

i. The facilities do not conflict with the deed of easement, including, but not limited to, the following:

(1) There is no detrimental impact to drainage, flood control, water conservation, erosion control, or soil conservation on the premises;

(2) During construction and installation of the solar energy facilities, appropriate measures are taken to control soil erosion from wind and water on the premises, including, but not limited to, the following:

(A) The temporary stabilization of exposed areas using vegetative cover or mulch; and

(B) The application of nonpotable water to exposed areas and the utilization of barriers to control air current and minimize soil blowing;

(3) During operation and maintenance of solar energy facilities, appropriate measures are taken to address soil and water conservation resource concerns on the premises;

(4) Solar energy facilities with an occupied area of more than one acre on the premises shall be constructed, installed, operated, and maintained in accordance with a farm conservation plan that addresses soil and water resource concerns outlined in the National and State Resources Concerns and Quality Criteria (Section III) and Practice Standards (Section IV) of the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) New Jersey Field Office Technical Guide (NJ-FOTG), which is incorporated herein by reference, as amended and supplemented, customized for the State of New Jersey, prescribing practices and standards for the conservation and management of soil, water, and related natural resources, which is available at http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/technical/fotg. The conservation plan filed must include a completed and NRCS-approved CPA-52 Environmental Evaluation Worksheet;

(5) The types of agricultural use or production that can occur on the premises shall not be restricted.

(A) The presence of the solar energy facilities shall not negatively impact the ability to utilize any portion of the premises outside the occupied area for a variety of agricultural or horticultural purposes;

(6) The solar energy facilities shall not interfere with the ability to access the premises for agricultural or horticultural purposes or uses, and to ensure compliance with the deed of easement and the provisions of this subchapter;

(7) Solar energy facilities shall not supply power or heat to an off-farm source of energy demand.

(A) Solar energy facilities shall not be interconnected to any off-farm energy consumer or off-farm source of energy demand.

(B) Solar energy facilities shall not be interconnected in a series to other energy generation facilities located off the farm.

(C) Solar energy facilities may be directly connected to the electric distribution system for the primary purpose of producing wholesale power, provided the facilities do not occupy more than one percent of the farm and are otherwise consistent with 4:1C-32.4 and the provisions of this subchapter;

(8) Easements shall not be provided through the farm for the purpose of transmitting power generated by an off-farm source, or to provide for roadways to service solar energy facilities not located on the farm.

(A) The prohibition on easements through the farm in this sub-subparagraph shall not apply to severable exception areas;

(9) Facilities servicing a use in a severable exception area shall be located entirely within the severable exception area;

(10) Facilities primarily servicing nonagricultural and/or nonresidential uses in a nonseverable exception area shall be located entirely in the nonseverable exception area to the maximum extent practicable or financially feasible.

(A) Where it is not possible to locate such facilities entirely in the nonseverable exception area, priority shall be given to mounting facilities on existing buildings and structures, and the portion of the occupied area outside the nonseverable exception area shall not exceed one acre or one percent of the farm, whichever is less, and the SADC may require from the facilities installer an itemization of all energy consuming devices connected to the electric revenue meter(s) to be serviced by the facilities, by energy demand and type of use, to determine whether the facilities will primarily service nonagricultural and/or nonresidential uses in the nonseverable exception area.

(B) Facilities located outside nonseverable exception areas to service energy demand within the nonseverable exception areas, may not be permitted or may be subject to more stringent Federal limitations than described in this sub-subparagraph, if the farm was preserved with funding from the U.S. Department of Agriculture Natural Resources Conservation Service's Farm and Ranch Lands Protection Program; and

(11) The facilities shall be located and configured in a manner that maximizes the use of the premises for agricultural or horticultural purposes.

(A) Facilities shall not be constructed or installed on prime farmland to the maximum extent practicable and financially feasible.

(B) Facilities shall be located along field edges and in nonproduction areas to the maximum extent practicable and financially feasible.

(C) Facilities shall be sited and configured to avoid dividing larger fields into smaller fields and isolating areas of the farm such that they are no longer viable or efficient for agricultural production, including, but not limited to, restricting the movement of agricultural vehicles/equipment for planting, cultivation, and harvesting of crops, and creating negative impacts on support infrastructure such as irrigation systems;

ii. The mounting of solar panels, collectors, or films constructed, installed, and operated on the premises shall be done in the following manner:

(1) The preferred installation shall be on buildings or facilities to minimize adverse impacts on the productivity of the soil.

(2) In the event that the method in paragraph (a)1ii(1) above is not practicable or financially feasible, the method of installation shall be as follows:

(A) On the ground by a screw, piling, or similar system that does not require a footing, concrete, or other permanent mounting; or

(B) Where the occupied area does not exceed one acre, using gravel within contained structures, concrete block, or similar materials for the purpose of providing ballast for mounting the solar energy facilities.

(3) In the event that the methods in (a)1ii(2) above, for mounting the solar panels, collectors, or films, are not practicable or financially feasible, then written justification shall be provided by a licensed professional engineer responsible for designing the installation of the solar panels, collectors, or films that a permanent ground mounting is necessary to conform with Federal or State laws, rules, or regulations, and that the permanent mounting requires footings, concrete, or other permanent methods;

iii. The treatment of the premises for purposes of constructing, installing, operating, or maintaining the solar energy facilities within the occupied area shall be in accordance with the following standards to ensure the land can readily be returned to active agricultural or horticultural production after the removal of the solar energy facilities.

(1) Site disturbance associated with the solar energy facilities, including, but not limited to, grading, topsoil, and subsoil removal, excavation and soil compaction, shall not exceed one acre on the premises.

(A) If wind or biomass energy generation facilities are located on the premises, the one-acre limit in (a)1iii(1) above shall apply to the cumulative total site disturbance resulting from all of the solar, wind, or biomass energy systems on the premises.

(B) Land smoothing in accordance with Practice Standards (Code 466) of the Natural Resources Conservation Service New Jersey-Field Office Technical Guide (NRCS NJFOTG) shall not be considered site disturbance.

(2) Excess topsoil shall not be removed from the premises, but shall be distributed or stockpiled elsewhere on the premises.

(A) For farms with an occupied area of more than one acre, topsoil shall be distributed or stockpiled on the premises in accordance with the farm conservation plan.

(3) The use of geotextile fabrics on the premises is permitted only for the purpose of conducting agricultural or horticultural production within the occupied area, unless otherwise permitted in this section.

(4) The use of concrete or asphalt on the premises is prohibited within the occupied area, except as follows:

(A) The mounting of inverters, transformers, power conditioning units, control boxes, pumps, and other such system components;

(B) The mounting of solar panels, films, and arrays when used as ballast, as described in (a)1ii(2)(B) above; and

(C) The mounting of the solar panels, films, and arrays, if determined necessary by a licensed professional engineer as described in (a)1ii(3) above.

(5) The placement of gravel or stone on the premises is prohibited for the purpose of preventing vegetative growth unless recommended as part of an approved NRCS soil and water conservation practice.

(6) New roadways within the occupied area shall be designed as grassed roadways to minimize the extent of soil disturbance, water runoff, and soil compaction on the premises.

(A) The use of geotextile fabrics and gravel placed on the surface of the existing soil for the construction of temporary roadways during the construction of the solar energy facilities is permitted provided that the geotextile fabrics and gravel are removed once the solar energy facilities are in operation.

(7) Where it is not practicable to utilize the occupied area on the premises for agricultural or horticultural production in accordance with 54:4-23.1 et seq.:

(A) The occupied area for ground-mounted facilities shall be maintained in vegetative cover to prevent soil erosion, mowed on a regular basis, and managed to prevent weeds or other invasive species from growing or spreading to other areas of the farm; or

(B) The occupied area beneath facilities mounted on buildings or other structures permitted pursuant to the deed of easement, including, but not limited to, carports or equipment shelters, shall be maintained in a manner consistent with the use of the buildings or structures; and

iv. The solar energy facilities shall be deemed abandoned and the facilities shall be decommissioned in those instances when they are no longer being utilized to produce solar energy for a period of 18 consecutive months.

(1) The decommissioning of facilities, structures, and equipment on the premises shall ensure that the agricultural productivity of the soil is restored to the greatest extent practicable, including, but not limited to, the following:

(A) All solar energy facilities shall be removed from the farm and the land shall be restored in order to achieve as much agricultural productivity of the soil as practicable and financially feasible; and

(B) The decommissioning of solar energy facilities with an occupied area of greater than one acre on the premises shall be performed in accordance with a farm conservation plan prepared pursuant to NJ-FOTG that addresses soil and water resource concerns, as set forth at (a)1i(4) above.

2. Factors for determining if the facilities, structures, and equipment are owned by the landowner or will be owned by the landowner upon the conclusion of the term of an agreement with the installer or operator of the solar generation facilities, structures, or equipment by which the landowner uses the income or credits realized from the solar energy to purchase the facilities, structures, or equipment are as follows:

i. A copy of a fully executed purchase or lease agreement for the facilities, structures, and equipment shall be provided to the Committee that clearly identifies that the owner(s) of the farm will be the sole owner(s) of the facilities, structures, and equipment on installation, or will be the sole owner(s) by the end of the term of the agreement.

(1) The term of an agreement whereby a farm owner leases the facilities and will purchase them at the end of the agreement shall not exceed 20 years.

(2) The agreement shall include an unconditional assignment to any subsequent owner taking title to the farm prior to the conclusion of an agreement.

ii. No portion of the land on the premises may be leased for the purpose of solar energy generation or production.

(1) Solar energy facilities may be leased only pursuant to an agreement in (a)2i above.

(2) A farm owner shall not lease solar energy facilities to another individual or party.

3. Factors for determining if the power or heat to the farm is provided directly or indirectly, or reduces through net metering or similar programs and systems, energy costs on the farm, are as follows:

i. For facilities that will be net metered, an approved Part One Interconnection/Application Agreement Form approved by the EDC pursuant to 14:8-5.4, 5.5, and 5.6, which is available from the EDC and includes a Part 1 (Terms and Conditions) and Part 2 (Certificate of Completion) shall be provided to the Committee, and the project shall meet the definition of net metering as set forth in this subchapter; or

ii. For facilities that will not be net metered, the landowner shall provide to the Committee:

(1) Documentation that the energy will be used to provide power or heat directly to the farm outside of the meter; or

(2) Where the facilities will provide energy directly to the electric distribution system, copies of electric utility bills and/or other bills, receipts, or documentation demonstrating the cost to provide power or heat to meet the farm's energy demand and a copy of either:

(A) An approved PJM Interconnection Service Agreement, which is part of the PJM Open Access Transmission Tariff, available at http://www.pjm.com/documents/%7e/media/documents/agreements/tariff.ashx , completed and signed by the EDC; or

(B) An approved Part One Interconnection/Application Agreement Form approved by the EDC pursuant to N.J.A.C. 14:8-5.4, 5.5, and 5.6, completed and signed by the EDC.

4. Factors for determining that the annual energy generation of solar energy facilities on the farm is limited to the farm's previous calendar year's energy demand plus 10 percent, in addition to energy generated or collected from facilities, structures, or equipment existing on roofs of buildings or other structures on the farm on January 16, 2010, are as follows:

i. The annual energy generation is based on the monthly sum of the farm's previous calendar year's energy demand and does not exceed that amount plus 10 percent.

ii. The landowner shall provide copies of the farm's electric utility bills and/or other bills, receipts, or other documentation demonstrating the amount of electricity or fuel used to meet the farm's energy demand.

iii. The farm owner shall provide documentation of installation date(s) for energy generation facilities, structures, or equipment already existing on roofs of buildings or other structures on the farm.

iv. If wind or biomass energy generation facilities are located on the farm, the limit in (a)4i above applies to the cumulative energy generated by solar, wind, and biomass facilities on the farm.

5. Factors for determining that the solar energy facilities on the farm are limited to an occupied area consisting of no more than one percent of the area of the farm are as follows:

i. A copy of the site plan depicting the occupied area shall be provided to the Committee;

ii. Solar energy facilities installed on the farm prior to the enactment of P.L. 2009, c. 213 on January 16, 2010, shall not be considered part of the occupied area in applications for new solar energy facilities unless the applications involve the expansion of pre-existing facilities; and

iii. If wind or biomass energy generation facilities are located on the farm, the limit in this paragraph shall apply to the total cumulative area occupied by all the solar, wind, and biomass energy generation facilities on the farm.

6. Factors for determining that the person who owns the farm and the solar energy facilities may only sell energy through net metering or as otherwise permitted under an agreement allowed pursuant to (a)2 above, and/or directly to the electric distribution system provided that the occupied area of the solar energy facilities does not exceed one percent of the farm.

i. For facilities that will be net metered, an approved Part One Interconnection/Application Agreement Form approved by the EDC pursuant to N.J.A.C. 14:8-5.4, 5.5, and 5.6, which is available from the EDC and includes a Part 1 (Terms and Conditions) and a Part 2 (Certificate of Completion), shall be provided to the Committee, and the project shall meet the definition of net metering;

ii. For facilities that will be connected directly to the electric distribution system, the following shall be provided:

(1) An approved PJM Interconnection Service Agreement, which is part of the PJM Open Access Transmission Tariff, available at http://www.pjm.com/documents/%7e/media/documents/agreements/tariff.ashx , completed and signed by the EDC; or

(2) An approved Part One Interconnection/Application Agreement Form approved by the EDC pursuant to N.J.A.C. 14:8-5.4, 5.5, and 5.6, completed and signed by the EDC;

iii. A copy of a fully executed purchase or lease agreement for the solar energy facilities that clearly identifies that the owner of the farm owns or will purchase and own the solar energy facilities, structures, and equipment at the end of the term of the agreement and the end date of the agreement shall be provided to the Committee.

iv. For solar energy facilities that will connect directly to the electric distribution system, the Committee shall determine from a review of the site plan that the occupied area of the proposed facilities does not exceed one percent of the farm.

(1) If wind or biomass energy generation facilities are located on the farm, the limit in this subparagraph shall apply to the total cumulative area occupied by all of the solar, wind and biomass energy facilities on the farm.

7. Factors for determining that the land occupied by the solar energy facilities is eligible for valuation, assessment, and taxation pursuant to P.L. 1964, c. 48 (54:4-23.1 et seq.) and continues to be eligible for such valuation pursuant to 54:4-23 are as follows:

i. A copy of the farmland assessment form approved by the local tax assessor shall be provided for the most recent tax year.

ii. The SADC shall confirm, in consultation with the New Jersey Department of the Treasury, Division of Taxation, that the solar energy facilities as proposed will not disqualify any portion of the farm from farmland assessment eligibility.

8. The impervious cover associated with the solar energy facilities shall not exceed one acre on the premises.

i. If wind or biomass energy generation facilities are located on the premises, the one-acre limit in (a)8 above shall apply to the cumulative total of impervious cover resulting from all of the solar, wind, and biomass energy facilities on the premises.

9. Factors for determining that a solar energy facility located in the Pinelands Area, as defined and regulated by the Pinelands Protection Act, P.L. 1979, c. 111 (13:18A-1 et seq.), complies with the standards of P.L. 1979, c. 111 and the comprehensive management plan for the Pinelands Area adopted pursuant to P.L. 1979, c. 111, are as follows:

i. A copy of written correspondence from the Pinelands Commission shall be provided confirming that the solar energy facilities comply with the standards of P.L. 1979, c. 111 and the comprehensive management plan for the Pinelands Area adopted pursuant to P.L. 1979, c. 111.

10. The construction of solar energy facilities on farms preserved with any funding provided by the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) through the Farm and Ranch Lands Protection Program (FRPP), or any successor NRCS grant program protecting land for agricultural uses, shall require the advanced, written approval of the NRCS.

11. Compliance with the criteria in this section shall be in addition to any other applicable State or Federal laws or regulations, including, but not limited to:

i.13:19-1 et seq., Coastal Area Facility Review Act;

ii. N.J.A.C. 7:38, Highlands Water Protection and Planning Act Rules; and

iii. N.J.A.C. 7:8, Stormwater Management.

N.J. Admin. Code § 2:76-24.6