The surge in solar farms has generated much debate, and there is one tough discussion around Prior Converted (PC) cropland you should know.

The looming question is whether PC cropland placed in a solar lease will still be eligible for agricultural exemptions once the lease expires and solar panels are decommissioned.

In Arkansas, agricultural lobbyists have brought this issue to the attention of state legislators, with a state resolution passed on behalf of farmers and landowners who place their farmland into solar arrays. This resolution encourages U.S. congressional legislation to ensure continued availability of agricultural production on PC cropland once a solar lease expires.

Rodney Baker, lobbyist and founder of Capitol Concepts in Little Rock, spoke with Farm Press to share insight into the work being done.

Baker said, “We are concerned that there is a huge lack of awareness about this problem. Losing exemptions on farmed wetlands potentially puts us at risk of the loss of land value and expanded regulation,” he said.

How solar compromises PC cropland

PC croplands were once wetlands on the floodplain of the Delta, cleared for the use of agricultural production prior to Dec. 23, 1984. These lands are protected under provisions of the National Food Security Act (NFSA) of 1985, with land use qualifications making them available for commodity crop production.

Related:How do solar farms affect farmland values?

The NFSA is administered by the USDA, and compliance allows agricultural producers to take advantage of program benefits for PC cropland. Additionally, these lands fall under provisions of the Clean Water Act (CWA), a federal law administered by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to regulate pollutants discharged into Waters of the United States (WOTUS).

The problem arises when solar arrays are placed on PC cropland. Of course, solar projects temporarily take the land out of agricultural production. In turn, this changes the land’s designation by the USDA Farm Service Agency’s (FSA) 10-CM handbook, Farm Records and Reconstitutions.

The handbook specifically considers land used for solar panels to be non-agricultural. Changing the designation for PC cropland from agricultural to commercial jeopardizes the exemptions from the CWA and qualifications for program benefits producers have been able to take advantage of on PC cropland.

Furthermore, with the long-term nature of solar leases, PC cropland with a solar array will be out of agricultural production for greater than the five-year limit required for FSA crop production records on the land.

Related:Solar leases, Part 2: Phases of solar projects

Unintended consequence for solar

Harold Fitts is land manager at Holden Conner Company, owned by John Conner in Newport. Fitts has been following this issue of solar arrays on PC cropland for the last couple of years.

“This came to me on the forefront when I joined Holden Conner in early 2022,” Fitts explained. At the time, there was a 1,900-acre solar project underway on Conner’s operation.

“I got involved with FSA through USDA and the NRCS office to discuss issues about the classifications of the land once placed into solar and how that would impact participation in programs,” Fitts said.

The company now has thousands of acres committed to solar contracts under the options phase for development. With concerns about PC cropland designations, Fitts and Holden Conner Company reached out to Baker for professional assistance in lobbying for farmers undertaking solar projects.

“This is somewhat of an unintended consequence of the solar initiative,” Fitts said.

He explained that once the land is classified as non-agricultural, it opens the door for EPA and USACE to enforce guidelines under the CWA. “Once it is classified and stays out of production for a five-year period, they would have to reevaluate and decide whether to classify it as a wetland or a non-wetland, rather than following the prior converted grandfather clause.”

Baker added this not only opens the door for increased regulation on these acres, but it puts the land at risk of losing its Certified Wetland Determination (CWD). “This would potentially prevent the land from returning to cropland in the future and would erode land values.”

Lobbyist call for action

Baker got to work lobbying on behalf of his client, Holden Conner Company, to help state legislators better understand the problem at hand.

Fitts said, “We went before the agricultural committee in the Arkansas state legislature to bring this to their attention, and they adopted an interim resolution. We are hoping to push that forward to the federal level."

The interim resolution, Res 2023-005 was adopted Feb. 9, 2024. It was submitted to U.S. Secretary of Agriculture Thomas Vilsack by Arkansas state Senator Ronald Caldwell, District 10 and state representative Roger D. Lynch, District 60.

Res 2023-005 requests that PC cropland receive no penalties for abandonment due to a solar array, as long as the land remains available for agricultural production at the termination of the solar lease.

Baker said, “To clarify, we are not proposing that landowners should retain crop payments while the land is used for solar arrays. We do, however, hope that future farm bills would allow base acres to be reestablished when PC cropland returns to production.”

Fitts added, “We lobbied that the solar arrays are a conservation initiative that our current administration is promoting for green and renewable energy. During the time period of the solar lease, we would like for PC cropland to be classified for conservation use and only temporarily unavailable for agricultural use.”

These sentiments were reiterated in a fact sheet provided by Baker which states, “We believe such a designation for solar and other renewable energy sources is consistent with other conservation uses that are currently allowed, and that are not considered as a change in land use.”

For now, it is a waiting game with hopes the U.S. congressional delegation will include language in the next farm bill to amend USDA guidance and keep PC cropland placed in solar projects available for agriculture.

Fitts noted that a quick fix to the problem would be an amendment to the FSA 10-CM handbook. “That is where we would like to see it start, but an amendment can easily be changed depending on administration,” he said. “So, we would like to see this locked in a formal farm bill legislation on a federal level.”