225 C.M.R. 28.09 – Mitigation Fee

(1) Applicability. A ground-mounted STGU with a capacity greater than 250 kW with a Project Footprint that overlaps with land that is not Previously Developed and does not qualify for a Locational Compensation Rate Adder listed under 225 CMR 28.13(3)(b) shall be subject to the requirements of 225 CMR 28.09.
(2) Mitigation Fee Formula.
1. (a) The Department shall determine a formula for calculating the appropriate Mitigation Fee for 225 CMR 28.00. The formula shall be published in the Department's Guideline Regarding Land Use, Siting, and Project Segmentation. The formula shall include a maximum fee per acre to be applied to the total acreage of the Project Footprint. The Department shall use the following weighted factors in such formula:
  1. 1. Carbon Storage. The average forest carbon stock, plus the amount of carbon projected to be sequestered through a year determined by the Department, in metric tons of carbon per acre, within the Project Footprint. The Department may partner with third-party entities to develop its approach for measuring the carbon storage score of an STGU.
  2. 2. Ecological Integrity. The ability of land located within the Project Footprint to support biodiversity and ecosystem processes over the long term. The Department may partner with third-party entities to develop its approach for measuring the Ecological Integrity score of an STGU.
  3. 3. Critical Natural Landscape. The assessment of the Project Footprint's overlap with Critical Natural Landscape.
  4. 4. Agricultural Potential. The agricultural potential of land located within the Project Footprint based on a classification of the farmland soil through the USDA Natural Resources Conservation Service and the land's status as Land in Agricultural Use.
  5. 5. Geographical Distribution. The assessment of the historical development of ground mounted solar in the SMART program by geographic distribution trends.
2. (b) Review Process for Mitigation Fee. For fees calculated under 225 CMR 28.09(2), an Applicant may request a review from the Department of whether the Mitigation Fee criteria scoring for a prospective Project Footprint presents a clear and obvious discrepancy from on-site conditions. The Department may consult with relevant agencies or third-party entities, including the Environmental Monitor, in assessing the on-site conditions and determining any corresponding adjustment to the Mitigation Fee. The Applicant may be subject to site visits and/or fees for the cost of the assessment.
3. (c) Project Footprints That Include Previously Developed Land. Any portion of a Project Footprint that includes Previously Developed land shall not be included in the acreage calculation for the Mitigation Fee under 225 CMR 28.09(2).
(3) Payment of Mitigation Fees. Applicants shall be required to pay 25 % of the Mitigation Fee within 30 days of receiving a Preliminary Statement of Qualification and the remainder of the Mitigation Fee at the time of submission for a Final Statement of Qualification. The Department shall not issue the Final Statement of Qualification until the Mitigation Fee is received. If an Applicant fails to pay the entirety of the Mitigation Fee, the Department may pause processing of all Statement of Qualification Applications submitted by the Applicant until the funds are received.
(4) Refunding of Mitigation Fees. Applicants shall receive a refund of the portion of the Mitigation Fee paid in the event that an STGU does not achieve commercial operation, and the Applicant can demonstrate to the Department's satisfaction that the land has not been materially impacted. Applicants shall withdraw the Statement of Qualification Application for the STGU in order to receive a refund.
(5) Trust Fund. Applicants shall deposit Mitigation Fee payments into an account maintained by the Executive Office of Energy and Environmental Affairs. Such account shall be held separate from the other accounts of the Executive Office of Energy and Environmental Affairs. The proceeds from this account shall be used without further appropriation to support conservation, ecosystem, and biodiversity programs in a proportion determined by the Executive Office of Energy and Environmental Affairs in consultation with the Department.
(6) Alternative Compliance Pathway. The Department may determine that an STGU subject to 225 CMR 28.09 satisfies the requirements of 225 CMR 28.09 by complying with all applicable mitigation fee provisions developed by the Executive Office of Energy and Environmental Affairs under the Site Suitability Methodology for Clean Energy Infrastructure pursuant to M.G.L. c. 21A, § 30, or any associated regulatory provisions established by the Department requiring the payment of fees for compensatory environmental mitigation for the restoration, establishment, enhancement or preservation of comparable environmental resources, pursuant to M.G.L. c. 25A, § 21.