Cracks in the clouds over solar energy

Upcoming legislation may provide (somewhat) smoother permitting process for developers

When commercial businesses think of the challenges of solar power, they usually think of cloudy days and the winter season. Energy developers might think of the interconnection backlog. But businesses also face a more literal on-the-ground challenge: alteration of terrain and stormwater permitting.

That may sound strange, because earthmoving impacts of ground-mounted solar are relatively slight. Additionally, the runoff from solar panels is presumed under the law to meet water quality standards. So why the regulations? The apparent concern is not with the content of the runoff, but with its flow and volume — i.e., the potential for uneven stormwater runoff from the panels, similar to water flowing off the roof of your backyard shed.

Under Env-Wq 1500, solar panels in New Hampshire are by default considered “impervious cover,” equivalent to a massive pavement parking lot. That designation can impose unexpected costs on businesses looking to power their operations with solar, as it might require creation of stormwater retention reservoirs, gravel wetlands or other stormwater management techniques.

Projects may qualify for an exception to this “impervious cover” designation, but the bar is quite high and requires an applicant to demonstrate a number of prerequisites.

To qualify for the exception a project must be located on low-sloping land and constructed to create conditions for even “sheet flow” off the panels. An applicant seeking to prove its minimal impacts and therefore qualify for this exception must first submit a “slope plan” to DES mapping the proposed site’s slopes at a 50-foot scale. DES then evaluates “sheet flow” based on factors such as whether panel edges are 1.5 to 10 feet off the ground, the ground cover underneath and around the panels is uniformly distributed and 85% vegetated, and runoff travels over at least 25 feet of vegetated area before discharging to a wetland.

Even if certain non-erosive sheet flow conditions are met, DES still requires an applicant to submit further “hydrologic analysis” unless, in addition to the presence of “sheet flow,” all land is sloped less than 5%; the ground cover is classified as open space, pasture, grassland or range; and access roads, including gravel access roads, account for less than 2% of the total disturbance area.

This past year, potential solar developers in the Granite State got some relief from these solar-permitting regulations when Governor Ayotte signed into law Senate Bill 65. That bill calls on DES to adopt rules establishing that solar projects under 5MW may be constructed upon Permit by Notification (PBN). PBNs are a streamlined permitting process in New Hampshire allowing property owners and businesses to conduct minimum-impact work without undergoing the traditional, lengthy standard permit process. The Alteration of Terrain Permit Application form contains a simple checkbox where applicants can check whether their project is “Solar 5 MW” or “Solar 5 MW,” as well as checkbox I21 where applicants can signal they have attached a PBN addendum. That addendum is located on DES’s website, and allows construction to proceed pending a series of personal attestations that the project meets the Alteration of Terrain requirements.

For the interim months between the passage of the law and the adoption of the rules, developers of projects under 5 MW were forced to seek waiver applications. That is no longer the case. On January 16, 2026, DES adopted the new set of rules making projects under 5 MW eligible for a PBN. A 5-MW system is enough energy to power over 1,000 homes, so this change could help provide an easier permitting path for meaningful solar development in the state.

This lower-level scrutiny review process for certain smaller-scale projects is not a full solution to the permitting issue. For starters, projects proposed to be developed within protected shore-land under RSA 483-B (i.e., land within 250 feet of the coasts, year-round flowing rivers and lakes over 10 acres) must still follow normal permit procedure, even if the project is under 5 MW and meets all other requirements. Second, the regulations further condition PBNs on, among other things, total earth disturbances being less than 150,000 square feet, developers utilizing temporary water quality protection measures during construction, and developers utilizing cold weather silt stabilization measures as applicable.

Still, the change in the law may be meaningful for developers. Had these revised rules been in effect earlier, two recent Concord solar projects might have benefited from this lower level of regulatory scrutiny: Lodestar’s 5 MW project on a former pine tree lot too sandy for agricultural use, and Kearsarge Energy’s 5 MW project on the closed-down Concord landfill. Both projects make use of land with limited other development opportunities.

For developers already facing headwinds from the federal government’s recent elimination of the 30% solar tax credit on projects constructed after December 31, 2025, further smoothing the permitting process would be a welcome avenue of relief.

Steven Yannacone is an attorney at McLane Middleton, licensed in both Massachusetts and New Hampshire, who serves as vice chair of the Environmental & Natural Resources Section of the New Hampshire Bar and specializes in corporate litigation and environmental and energy law. He can be reached at steven.yannacone@mclane.com.