Senate Bill S8088

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8088
 
                             I N  S E N A T E
 
                             January 25, 2022
                                ___________
 
 Introduced  by  Sen. HINCHEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Agriculture
 
 AN ACT to amend the agriculture and markets  law,  in  relation  to  the
   construction,  installation  and  operation  of  dual-use solar energy
   projects on certain land which receives an agricultural assessment

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  agriculture and markets law is amended by adding two
 new sections 305-d and 305-e to read as follows:
   § 305-D. DUAL-USE SOLAR ENERGY PROJECTS PILOT PROGRAM.  1. THE DEPART-
 MENT SHALL ESTABLISH A  DUAL-USE  SOLAR  ENERGY  PROJECT  PILOT  PROGRAM
 PROMOTING  THE INSTALLATION OF DUAL-USE ENERGY PROJECTS ON CERTAIN AGRI-
 CULTURAL LAND. THE DEPARTMENT SHALL OVERSEE THE  IMPLEMENTATION  OF  THE
 PILOT PROGRAM.
   2. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
   A.  "DUAL-USE  SOLAR  ENERGY  PROJECT" MEANS A SOLAR INSTALLATION THAT
 INTEGRATES SOLAR ARRAYS AND FARMING ACTIVITY ON THE SAME GROUND.  TO  BE
 CONSIDERED DUAL-USE, A SOLAR INSTALLATION CANNOT DISPLACE FARMING ACTIV-
 ITY;  FARMING  ACTIVITY  MUST  BE  MAINTAINED THROUGHOUT THE LIFE OF THE
 SOLAR FACILITY IN A MANNER THAT IS CONSISTENT WITH  COMMERCIAL  AGRICUL-
 TURAL  PRODUCTION AS APPROPRIATE TO THE CAPACITY OF THE LAND WHEN FARMED
 SUSTAINABLY. DUAL-USE IS DIFFERENT THAN SIMPLE CO-LOCATION WHICH  GENER-
 ALLY  INVOLVES  TRADITIONAL GROUND-MOUNTED SOLAR INSTALLATIONS THAT HOST
 NON-AGRICULTURAL PLANTINGS WITH ADDITIONAL ENVIRONMENTAL BENEFITS.   THE
 TERM  "DUAL-USE"  REFERS  TO  A  SOLAR INSTALLATION THAT: (I) RETAINS OR
 ENHANCES THE LAND'S AGRICULTURAL PRODUCTIVITY, BOTH SHORT TERM AND  LONG
 TERM;  (II) IS BUILT, MAINTAINED, AND HAS PROVISIONS FOR DECOMMISSIONING
 TO PROTECT THE LAND'S AGRICULTURAL  RESOURCES  AND  UTILITY;  AND  (III)
 SUPPORTS THE VIABILITY OF A FARMING OPERATION.
   B. "PRESERVED FARMLAND" MEANS LAND ON WHICH A DEVELOPMENT EASEMENT WAS
 CONVEYED TO, OR RETAINED BY, THE COMMITTEE, A BOARD, OR A QUALIFYING TAX
 EXEMPT NONPROFIT ORGANIZATION FOR FARMLAND PRESERVATION PURPOSES.
   C. "UNPRESERVED FARMLAND" MEANS ANY LAND THAT IS VALUED, ASSESSED, AND
 TAXED AS FARMLAND AND IS NOT PRESERVED FARMLAND.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13027-03-2
 S. 8088                             2

   3.  NOTWITHSTANDING  THE PROVISIONS OF ANY LAW, RULE, OR REGULATION TO
 THE CONTRARY, ANY OWNER OF UNPRESERVED FARMLAND WHICH RECEIVES AN  AGRI-
 CULTURAL  ASSESSMENT,  MAY  CONSTRUCT,  INSTALL,  AND OPERATE A DUAL-USE
 SOLAR ENERGY PROJECT ON SUCH FARMLAND, PROVIDED THAT:
   A.  THE  OWNER  OF THE UNPRESERVED FARMLAND WHICH RECEIVES AN AGRICUL-
 TURAL ASSESSMENT OBTAINS THE APPROVAL OF THE DEPARTMENT, IN ADDITION  TO
 ANY OTHER APPROVALS THAT MAY BE REQUIRED PURSUANT TO STATE OR LOCAL LAW,
 RULE,  REGULATION,  OR ORDINANCE, PRIOR TO THE CONSTRUCTION OF THE DUAL-
 USE SOLAR ENERGY PROJECT;
   B. THE CAPACITY OF THE DUAL-USE SOLAR ENERGY PROJECT IS LESS THAN  TEN
 MEGAWATTS OF POWER;
   C. THE DUAL-USE SOLAR ENERGY PROJECT IS NOT LOCATED:
   (I)  WITHIN THE ADIRONDACK PARK, THE CATSKILL PARK OR ANY OTHER FOREST
 PRESERVE, AS DEFINED IN SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION
 LAW; OR
   (II) IN FRESHWATER WETLANDS, AS DEFINED  IN  SECTION  24-0107  OF  THE
 ENVIRONMENTAL  CONSERVATION LAW, OR TIDAL WETLANDS AS DEFINED IN SECTION
 25-0103 OF THE ENVIRONMENTAL CONSERVATION LAW; OR
   D. THE OWNER OF THE UNPRESERVED FARMLAND WHICH  RECEIVES  AN  AGRICUL-
 TURAL  ASSESSMENT  HAS FILED A CONSERVATION PLAN WITH THE SOIL CONSERVA-
 TION DISTRICT TO ACCOUNT FOR THE  AESTHETIC,  IMPERVIOUS  COVERAGE,  AND
 ENVIRONMENTAL  IMPACTS  OF THE DUAL-USE SOLAR ENERGY PROJECT, INCLUDING,
 BUT NOT LIMITED TO, WATER RECAPTURE AND FILTRATION, AND THE CONSERVATION
 PLAN HAS BEEN APPROVED BY THE DISTRICT;
   E. THE PROJECT COMPLIES WITH THE AGRICULTURAL ENVIRONMENTAL MANAGEMENT
 PROGRAM AND ANY AGRICULTURAL ENVIRONMENTAL MANAGEMENT  PLAN  ESTABLISHED
 PURSUANT TO ARTICLE ELEVEN-A OF THIS CHAPTER; AND
   F.  THE  OWNER  OF THE UNPRESERVED FARMLAND WHICH RECEIVES AN AGRICUL-
 TURAL ASSESSMENT, OR THE PERSON UNDERTAKING THE  DUAL-USE  SOLAR  ENERGY
 PROJECT,   AS  APPLICABLE,  OBTAINS  ALL  NECESSARY  PERMITS  AND  OTHER
 APPROVALS AS MAY BE REQUIRED PURSUANT TO FEDERAL, STATE, OR  LOCAL  LAW,
 RULE, REGULATION, OR ORDINANCE.
   4.  THE  OWNER  OF THE UNPRESERVED FARMLAND WHICH RECEIVES AN AGRICUL-
 TURAL ASSESSMENT SHALL SUBMIT AN APPLICATION FOR APPROVAL BY THE DEPART-
 MENT BEFORE CONSTRUCTING, INSTALLING, AND  OPERATING  A  DUAL-USE  SOLAR
 ENERGY  FACILITY AS ALLOWED PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
 THE DEPARTMENT, IN CONSULTATION WITH  THE  OFFICE  OF  RENEWABLE  ENERGY
 SITING, SHALL, WITHIN NINETY DAYS AFTER RECEIPT, APPROVE, DISAPPROVE, OR
 APPROVE  WITH  CONDITIONS  AN  APPLICATION SUBMITTED FOR THE PURPOSES OF
 SUBDIVISION ONE OF THIS SECTION.
   5. THE DEPARTMENT MAY SUSPEND OR REVOKE AN APPROVAL ISSUED PURSUANT TO
 THIS SECTION FOR A VIOLATION OF ANY TERM OR CONDITION OF THE APPROVAL OR
 ANY PROVISION OF THIS SECTION.
   6. THE DEPARTMENT, IN CONSULTATION WITH THE OFFICE OF RENEWABLE ENERGY
 SITING AND THE DEPARTMENT OF  ENVIRONMENTAL  CONSERVATION,  SHALL  ADOPT
 RULES  AND REGULATIONS NECESSARY FOR THE IMPLEMENTATION OF THIS SECTION,
 INCLUDING BUT NOT LIMITED TO: (I) THE PROCESS BY WHICH A  LANDOWNER  MAY
 APPLY FOR THE APPROVAL REQUIRED PURSUANT TO THIS SECTION, AND THE ESTAB-
 LISHMENT OF REASONABLE APPLICATION FEES TO PAY FOR THE COST OF REVIEW OF
 THE  APPLICATION;  AND  (II) PROVISIONS PRESCRIBING STANDARDS CONCERNING
 IMPERVIOUS COVER WHICH MAY BE  PERMITTED  IN  CONNECTION  WITH  DUAL-USE
 SOLAR ENERGY PROJECTS AUTHORIZED TO BE CONSTRUCTED, INSTALLED, AND OPER-
 ATED ON UNPRESERVED FARMLAND PURSUANT TO THIS SECTION.
   7.  THE  OFFICE  OF  RENEWABLE  ENERGY  SITING SHALL PROVIDE TECHNICAL
 ASSISTANCE AND SUPPORT TO THE  DEPARTMENT  CONCERNING  THE  DEPARTMENT'S
 RESPONSIBILITIES PURSUANT TO THIS SECTION.
 S. 8088                             3
 
   8. TWELVE MONTHS AFTER THE EFFECTIVE DATE OF THIS SECTION, AND ANNUAL-
 LY  THEREAFTER, THE COMMISSIONER SHALL REPORT TO THE GOVERNOR, TEMPORARY
 PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY ON THE  DUAL-USE
 SOLAR ENERGY PROJECTS PILOT PROGRAM AND ITS RESULTS.
   §  305-E.  DUAL-USE  SOLAR ENERGY PROJECTS PILOT PROGRAM; AGRICULTURAL
 ASSESSMENTS.   1. NO LAND USED  FOR  A  DUAL-USE  SOLAR  ENERGY  PROJECT
 CONSTRUCTED,  INSTALLED,  AND OPERATED PURSUANT TO SECTION THREE HUNDRED
 FIVE-D OF THIS ARTICLE SHALL BE CONSIDERED LAND USED FOR A  FARM  OPERA-
 TION FOR THE PURPOSES OF AGRICULTURAL ASSESSMENTS, EXCEPT AS PROVIDED IN
 THIS SECTION.
   2.  LAND  USED  FOR  A  DUAL-USE  SOLAR  ENERGY  PROJECT  CONSTRUCTED,
 INSTALLED, AND OPERATED PURSUANT TO SECTION THREE HUNDRED FIVE-D OF THIS
 ARTICLE MAY BE ELIGIBLE FOR VALUATION, ASSESSMENT, AND TAXATION AS AGRI-
 CULTURAL LAND OR A FARM OPERATION, PROVIDED THAT:
   A. THE DUAL-USE SOLAR ENERGY PROJECT IS LOCATED ON  UNPRESERVED  FARM-
 LAND  THAT IS CONTINUING TO BE IN OPERATION AS LAND USED IN AGRICULTURAL
 PRODUCTION IN THE TAX YEAR FOR WHICH THE VALUATION, ASSESSMENT AND TAXA-
 TION AS AGRICULTURAL LAND OR A FARM OPERATION IS APPLIED FOR;
   B. IN THE TAX YEAR PRECEDING THE CONSTRUCTION, INSTALLATION, AND OPER-
 ATION OF THE DUAL-USE SOLAR ENERGY PROJECT, THE  ACREAGE  USED  FOR  THE
 DUAL-USE SOLAR ENERGY PROJECT WAS VALUED, ASSESSED, AND TAXED AS LAND IN
 AGRICULTURAL PRODUCTION;
   C.  THE  LAND  ON  WHICH  THE DUAL-USE SOLAR ENERGY PROJECT IS LOCATED
 CONTINUES  TO  BE  ACTIVELY  OPERATED  AS  LAND  USED  IN   AGRICULTURAL
 PRODUCTION, AND MEETS ANY INCOME REQUIREMENTS SET FORTH FOR SUCH LAND;
   D.  THE  APPROVAL  ISSUED FOR THE DUAL-USE SOLAR ENERGY PROJECT BY THE
 DEPARTMENT PURSUANT TO SECTION THREE HUNDRED FIVE-D OF THIS ARTICLE  HAS
 NOT BEEN SUSPENDED OR REVOKED; AND
   E.  ALL  OTHER REQUIREMENTS FOR SUCH VALUATION, ASSESSMENT OR TAXATION
 ARE MET.
   3. NO GENERATED ENERGY FROM A DUAL-USE SOLAR ENERGY PROJECT  SHALL  BE
 CONSIDERED  A  PRODUCT OF A FARM OPERATION, AND NO INCOME FROM ANY POWER
 SOLD FROM THE DUAL-USE SOLAR ENERGY PROJECT MAY BE CONSIDERED INCOME FOR
 ELIGIBILITY FOR VALUATION, ASSESSMENT, AND TAXATION AS AGRICULTURAL LAND
 OR A FARM OPERATION.
   4. WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS SECTION, THE  DEPART-
 MENT  OF  TAXATION  AND FINANCE, IN CONSULTATION WITH THE DEPARTMENT AND
 THE OFFICE OF RENEWABLE ENERGY SITING, SHALL:
   A. ADOPT SUCH RULES AND REGULATIONS AS MAY BE NECESSARY FOR THE IMPLE-
 MENTATION AND ADMINISTRATION OF THIS SECTION AND SECTION  THREE  HUNDRED
 FIVE-D OF THIS ARTICLE; AND
   B.  INCORPORATE  INFORMATION CONCERNING DUAL-USE SOLAR ENERGY PROJECTS
 INTO ANY GUIDELINES PROVIDED, AND CONTINUING EDUCATION COURSES  OFFERED,
 TO MUNICIPAL TAX ASSESSORS, COUNTY ASSESSORS, COUNTY TAX ADMINISTRATORS,
 AND OTHER APPROPRIATE LOCAL GOVERNMENT OFFICIALS.
   5.  FOR  THE PURPOSES OF THIS SECTION, "DUAL-USE SOLAR ENERGY PROJECT"
 SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION THREE  HUNDRED  FIVE-D
 OF THIS ARTICLE.
   § 2. This act shall take effect immediately.