01 M.R.S. § 001-575-5 - PERMIT PROCESS

1. PERMIT TYPES. If a developer proposes to build a solar energy development and meets the applicability requirements described in § 3, they must apply for a permit to DACF. Applicants may seek a permit by rule (PBR) if they meet the conditions described in § 5(3)(A) or seek an individual permit if they do not meet the conditions described in § 5(3)(A). PBR permittees are not subject to fulfilling compensation requirements as described in § 7, only individual permit permittees.

2. APPLICATION REQUIREMENTS. Regardless of whether an applicant is applying for a PBR or an individual permit, the applicant must submit the following to DACF as part of their application:

A. The results from a field-based survey of all land that does not meet the definition of "contaminated land" or "forestland" within the solar energy development land area.

B. Documentation, if applicable, to prove that any portion of the land area in question meets the definition of "contaminated land," "PFAS-impacted HVAL," "forestland," or "blueberry barren."

C. All applicable permit application forms that are listed on DACF's website.

D. Solar energy development design drawings, including the mounting system type (fixed or tracking), panel tilt, panel row spacing, and panel mounting height.

E. A signed agreement that the applicant plans to meet the BMPs described in the most recently updated version of the DACF guidance document titled "Best Management Practices for Solar Energy Development on Farmland." If any of the best management practices (BMPs) described in the guidance document do not apply to the solar energy development, then the applicant must provide a list of said BMPs and a short explanation of why they are not applicable.

If the applicant of an individual permit opts to pay a compensation fee for the entire solar energy development land area in accordance with § 7(8), then the application materials described in subsections A and B above are not required as a part of the permit application.

3. PERMIT BY RULE (PBR)

A. APPLICABILITY. An applicant may qualify for a PBR if either:

(1) The solar energy development contains fewer than twenty (20) acres; or

(2) The only HVAL the solar energy development land area occupies is land that meets the definition of "PFAS-impacted HVAL."

B. PBR-SPECIFIC APPLICATION REQUIREMENTS. In addition to the application requirements described in § 5(Error: Reference source not found), an applicant applying for a PBR must submit the following to DACF as part of their application:

(1) A statement describing how impacts to HVAL have been avoided or minimized to the extent practicable with the current siting and design. A statement describing how the solar energy development is proposed to be constructed on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current siting and design (statements are not to exceed two (2) pages).

C. PROCEDURES. The applicant submits their application materials to DACF. DACF will either make a written determination approving or denying the application, will request additional information before issuing a determination, or will not respond to the permit application submittal.

(1) APPROVED. If the application is approved, the applicant may proceed to carry out the activity once they have obtained all other appropriate approvals, licenses, permits, certifications, or other such similar approvals that are required by other state agencies, federal agencies, or municipalities.

(2) NO RESPONSE. If DACF does not communicate with the applicant regarding the PBR application through any means, including verbal, written, or electronic communications within thirty (30) calendar days after DACF receives the PBR application, the application is automatically granted. Once the applicant has obtained all other appropriate approvals, licenses, permits, certifications, or other such similar approvals that are required by other state agencies, federal agencies, or municipalities, the applicant may proceed to carry out the activity as if the application has been approved.

(3) REQUEST FOR INFORMATION. If DACF requests more information, DACF must act on an application within thirty (30) calendar days after receiving the requested information; otherwise, the application is automatically granted. For the purposes of this subsection, "to act on" means to approve or deny the permit application or make an additional request for information.

(4) DENIED. If DACF denies a PBR application, the applicant may apply for an individual permit.

D. CONDITIONS FOR PBR APPROVAL. A PBR application will be approved if it meets all of the following conditions:

(1) All of the required application materials are provided with the application.

(2) If DACF requests more information that it deems necessary for it to make findings required by applicable review criteria and DACF determines that the applicant has sufficiently provided the additional information requested.

(3) DACF determines, based on the summary described in § 5(3)(B)(1), that impacts to HVAL have been avoided or minimized to the extent practicable, and the solar energy development is proposed to be constructed on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current siting and design.

E. CONDITIONS FOR PBR DENIAL. A PBR application will be denied if it meets any of the following conditions:

(1) Any of the required application materials are absent from the application.

(2) DACF requests more information that it deems necessary for it to make findings required by applicable review criteria and the applicant fails to provide the additional information requested.

(3) DACF determines based on the summary described in § 5(3)(B)(1) that impacts to HVAL have not been avoided or minimized to the extent practicable, or the solar energy development is not proposed to be constructed on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current siting and design.

4. INDIVIDUAL PERMIT

A. APPLICABILITY. An applicant who meets the criteria of applicability as described in § 3 and does not qualify for a PBR may apply for an individual permit.

B. INDIVIDUAL PERMIT-SPECIFIC APPLICATION REQUIREMENTS. In addition to the application requirements described in § 5(Error: Reference source not found), an applicant applying for an individual permit must submit an "alternatives analysis" as described in § 2(4) and § 5(4)(C) to DACF as part of their application. If the applicant of an individual permit opts to pay a compensation fee for the entire solar energy development land area in accordance with § 7(8), then the "alternatives analysis" is not required as a part of the permit application.

C. AVOIDANCE AND MINIMIZATION. Construction and operation of the solar energy development will be considered to result in a severe adverse impact if it will cause a loss in the agricultural productivity of HVAL and there is a practicable alternative that would be less damaging to HVAL. The applicant for an individual permit shall provide an "alternatives analysis" to determine if a practicable alternative exists and if, to the extent practicable, the solar energy development is located on the least agriculturally productive portions of the parcel(s).

D. PROCEDURES. The applicant submits their application materials to DACF. DACF will notify the applicant to confirm receipt of the application and deem it complete for processing. If the application is deemed incomplete, DACF will notify the applicant of any deficiency within a reasonable time after it becomes aware of the deficiency. DACF may request additional information before issuing a determination or may approve, approve with conditions, or deny the permit application.

(1) APPROVED. If the application is approved, DEP will calculate the compensation fee, if applicable. Once the applicant fulfills the compensation requirements (whether a compensation fee or conservation option as described in 38 M.R.S. §484-C(4) ), has obtained DACF approval, and has obtained all other appropriate approvals, licenses, permits, certifications, or other such similar approvals that are required by other state agencies, federal agencies, or municipalities, the applicant may then proceed to carry out the activity.

(2) APPROVED WITH CONDITIONS. If the application is approved with conditions, the conditions must be met for the permit to be valid. If applicable, DEP will calculate the compensation fee. Once the applicant fulfills the compensation requirements (whether a compensation fee or conservation option as described in 38 M.R.S.§484-C(4) ), has obtained DACF approval, and has obtained all other appropriate approvals, licenses, permits, certifications, or other such similar approvals that are required by other state agencies, federal agencies, or municipalities, the applicant may then proceed to carry out the activity. If DACF finds the conditions have not been met, DACF may seek revocation of the permit in accordance with the Maine Administrative Procedure Act.

(3) DENIED. If the application is denied, DACF will promptly notify the applicant of the reasons for the rejection. The applicant may appeal the decision as described in § 12.

E. CONDITIONS FOR INDIVIDUAL PERMIT APPROVAL. An individual permit application will be approved if:

(1) The applicant i) opts to pay the compensation fee for the entire solar energy development land area in accordance with § 7(8) in lieu of submitting the results of a field-based survey, an alternatives analysis, and documentation detailing that land meets the definition of "blueberry barren," "PFAS-impacted HVAL," "active farmland," "contaminated land," and/or "forestland" and ii) all of the application materials described in § 5(2)(C) through § 5(2)(E) are provided with the application; or

(2) It meets all of the following conditions:

(a) All of the required application materials are provided with the application as described in § 5(2) and § 5(4)(B).

(b) If DACF requests more information that it deems necessary for it to make findings required by applicable review criteria and DACF determines that the applicant has sufficiently provided the additional information requested.

(c) DACF determines, based on the alternatives analysis, that impacts to HVAL have been avoided or minimized to the extent practicable, and the solar energy development is proposed to be constructed on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current project siting and design.

F. CONDITIONS FOR INDIVIDUAL PERMIT DENIAL. An individual permit application will be denied if it meets any of the following conditions:

(1) Any of the required application materials are absent from the application.

(2) DACF requests more information that it deems necessary for it to make findings required by applicable review criteria and the applicant fails to provide the additional information requested.

(3) DACF determines, based on the alternatives analysis, that impacts to HVAL have not been avoided or minimized to the extent practicable or the solar energy development is not proposed to be constructed on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current siting and design.

G. INCREASED COMPENSATION IN LIEU OF PERMIT DENIAL. In lieu of permit denial for subsection 5(4)(F)(3) above, DACF may approve the permit application and determine if an applicant should owe an increased compensation fee of up to 110% of their original calculated compensation fee for failing to avoid or minimize impacts to HVAL to the extent practicable and/or failing to propose construction of the solar energy development on the least agriculturally productive portions of the parcel(s) to the extent practicable with the current siting and design. This option provides an avenue for solar energy developments to proceed with construction at DACF's discretion despite not meeting all of the conditions for individual permit approval.

H. PROCESSING TIME. DACF will establish and post reasonable, estimated permit application processing times on its website. The processing time DACF estimates will be required to make a determination on an application shall not begin until DACF determines that the application is complete. If DACF requests additional information, the application will only be considered complete once DACF receives it and determines that the applicant has sufficiently provided the additional information requested.

Notes

01 M.R.S. § 001-575-5