Counties navigate control of siting, permitting for renewable energy

Key Takeaways

To meet renewable energy development goals, some states are shifting to preempt county control over large-scale renewable energy-siting decisions. Because counties manage services on the ground, local officials say they should help lead the development process.

Across the country, 97% of states maintain some control of the permitting process in renewable energy; however, 73% empower local authorities to determine the siting standards, according to the U.S. Department of Energy. 

Arizona is a Dillon Rule state, meaning local authority is limited and local government is only allowed to hold control expressly granted by the state. But Arizona counties have local siting authority for renewable energy projects, up to 100 megawatts. 

“The demand for power in the state has doubled,” said Chris Pasterz, Navajo County, Ariz. economic development director. “They have to double the capacity in the next 10 years, that’s what the projection is … so, the state is trying to do everything they can to create more power.” 

The benefit of stronger local control is that a county Board of Supervisors knows the community — the people and the land — much better than the state does, Navajo County Attorney Brad Carlyon said.

“Just Navajo County is over 10,000 square miles, which is bigger than [some] states, and Arizona as a whole is a huge place,” Carlyon said. “Our [state] legislative leaders and the leaders of our Corporation Commission [the state public utility regulator] are based out of the valley, and may well never have even come to some of the rural counties that they’re looking to place these energy projects in.”

For nearly two decades, the Arizona Corporation Commission mandated utilities reach 15% renewable energy by 2025. Last August, the Commission voted to repeal the rules, citing concerns of cost and business flexibility. 

Now, proposed Arizona state legislation would limit local authority on conditional use permitting and the land use process. 

“Counties need to keep that permitting control, so that they can then make sure that there are requirements to invest in things like fire and medical, roads, housing,” Pasterz said. “Things like local hiring preferences, where we say, ‘You want 500 workers that are going to move in, we want you to have a percentage of those guys local. Feed our local families that own houses, whose kids go to school here.’”

One bill would classify any renewable energy project within four miles of a residential property as a “public nuisance.” 

“To me, it’s just another common encroachment on the state and local government,” Carlyon said. “Admittedly, Arizona’s a Dillon law state, but they sure complain about the federal government encroaching on states’ rights. They have no trouble taking rights away from counties and municipalities.”

Navajo County has “checkerboard land,” meaning private, state and federal land are situated in small sections next to each other. Because of the size and scope of renewable energy projects, they’re often on both private and state land, and typically would be within four miles of agricultural property that would qualify as residential, according to Carlyon. 

“My concern as a prosecutor is why are we criminalizing land use law?” he said. “But that’s one of the things they’re attempting to do this session. I’m hoping it won’t get legs, but they’re going as far as criminalizing building renewable energy.”

Two years ago, as part of its comprehensive plan update, Navajo County established the necessity of a development agreement in renewable energy development, which is critical for counties, Pasterz said. Community Benefit Agreements can require developers to provide direct payment to a county, funding services beyond what the property tax does, to mitigate the local impacts of large developments. 

Because of the “checkerboard” structure of the land, if solar development projects are on state land, a county would still face the negatives of that development on its services and infrastructure, without the tax benefits, Pasterz noted. 

“So, the locals are going, ‘Hmm, we’ve got a burden,’ and that’s where the Community Benefits Agreements kind of offsets that,” Pasterz said. “So, some of the money can go to the fire department that doesn’t get any money, can pay for different road items or infrastructure buildouts, help to ease the housing crunch.”

Last year, 12 states enacted laws or issued executive orders to fast-track renewable siting and permitting, streamline approval processes or consolidate siting authority: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, New Jersey, Ohio, Oregon, Vermont and Washington.

In Maryland, the state has primary authority in siting renewable energy developments, which has sometimes resulted in counties being in the dark on the process until an issue arises, said Frederick County, Md. Council Member M.C. Keegan-Ayer. 

Counties have control over zoning, but the state could work more effectively with localities by increasing communication and transparency around development starting from the identification of potential development sites, she said. 

“The onus is almost on the county to recognize where these things are being proposed, and then to get a jump on making sure that they’re kept in the loop,” Keegan-Ayer said. “I think there could be better initial outreach and communication from the very start from the state entities.”

Localities don’t need to have control over the whole process to have a voice, but if states established a stronger working relationship with counties, it would benefit everyone involved, according to Keegan-Ayer. 

“Because we’re in better direct communication with the residents, some of the heartburn that residents have [with renewable energy development], sometimes could be addressed early on and put to rest,” Keegan-Ayer said. “And then you could go on and address the bigger issues that are going to take a lot longer to resolve.” 

Frederick County is Maryland’s largest agricultural producer, with more than 1,300 farms. Solar developers started coming in and offering farmers more money per acre than they could get renting it out to another farmer to integrate solar panels onto farmland, prompting the county to create a task force including local farmers and solar company representatives, according to Keegan-Ayer. In 2017, the Frederick County Council adopted legislation restricting the siting of solar farms on farmland. 

“Solar was absolutely taking over farmland in the county, or being proposed to, simply because it’s open, it’s also cheaper for the solar companies themselves,” Keegan-Ayer said. “… So, we got involved in it, because it wasn’t exactly where we wanted to go as far as trying to encourage our farming community to continue farming, so we had to strike a balance.”

Frederick County is working to shift solar development away from farmland, and onto less-invasive areas such as canopies over parking areas, rooftops, brownfields and the landfill, according to Keegan-Ayer. 

“We’re trying to be a little more inventive as to where it goes, as opposed to just out in the fields and on prime farmland,” Keegan-Ayer said. 

“… Like everything [counties] do, it’s a balancing act.”