August 31, 2022

Comments of the Chesapeake Solar & Storage Association (“CHESSA”) and the Solar Energy Industries Association (“SEIA”) (together, the “Joint Parties”) on DEQ Guidance Memo on Streamlined Plan Review for Construction Stormwater Plan and Erosion and Sediment Control Plans (Guidance Memo No. 22-2011) and Stormwater Management and Erosion & Sediment Control Design Guide (Guidance Memo No. 22-2012)

Executive Summary: 

1. JOINT PARTIES are generally supportive of Guidance Memo No. 22-2011.
2. JOINT PARTIES have concerns about Guidance Memo No. 22-2012 and would appreciate an opportunity to have further conversations with DEQ to address these concerns. 

Background: 

The Chesapeake Solar & Storage Association, generally known as CHESSA, represents every facet of the solar industry in Virginia, Maryland and the District of Columbia. Founded in 1984 as the Maryland-DC-Virginia Solar Energy Industries Association, CHESSA was formed to support the policy and regulatory needs of its members who design, sell, integrate, install, maintain, and finance solar energy and energy storage equipment. CHESSA’s association of over one hundred members serves residential, commercial, industrial, and institutional customers throughout the region.

The Solar Energy Industries Association (“SEIA”) is the largest national trade association for the solar industry. With more than 1,000 member companies nationwide, SEIA leads the transformation to a clean energy economy, creating the framework for solar to achieve 20% of U.S. electricity generation by 2030. SEIA works with its member companies and other strategic partners to fight for policies that create jobs in every community and shape fair market rules that promote competition and the growth of reliable, low-cost solar power. 

Major Concerns:

Major Concern #1

With respect to Section 5.500, Solar Panel Arrays, the Joint Parties remain concerned about the details of the grandfathering provisions for an effective date of December 31, 2024.  The March 29, 2022 technical memorandum (the “March Memo”) and the April 14, 2022 technical memorandum (the “April Memo”) use the threshold of “Interconnection Approval” by PJM prior to December 31, 2024, as further clarified by the April Memo.

The purpose of the April Memo was to provide some level of certainty for solar developers to provide a grandfathering provision to solar projects already in the pipeline of development to protect the economic investment in those projects. Unfortunately, since PJM has since indicated it intends to effectively shut down consideration of interconnection applications for at least two years beginning October 31, 2022, the April Memo creates significant uncertainty for solar developers with projects in the development pipeline.

The Joint Parties understand that DEQ believes the underlying policy should be that solar panels be treated as impervious and that new solar projects should be developed in accordance with these criteria. At the same time, however, changing this interpretation without a workable grandfathering provision would harm solar developers with solar projects already well into the pipeline. Therefore, the Joint Parties would respectfully request that DEQ change the grandfathering provision in Guidance Memo No. 22-2012 from using a PJM threshold as the trigger and instead use the same trigger the General Assembly used either in: (i) the 2022 Regular Session of the General Assembly’s House Bill 206; or (ii) Va. Code Section 58.1-3660. 

1. HB 206 provides a grandfathering provision as follows: “That any small renewable energy project for which an initial interconnection request application has been received and accepted by the regional transmission organization or electric utility by December 31, 2024, shall not be subject to the provisions of this act.”
2. Section 58.1-3660 provides a grandfathering provision as follows:  “For the purposes of this subsection, "application has been filed with the locality" means an applicant has filed an application for a zoning confirmation from the locality for a by-right use or an application for land use approval under the locality's zoning ordinance to include an application for a conditional use permit, special use permit, special exception, or other application as set out in the locality's zoning ordinance.”

Major Concern #2

With respect to Section 5.200 (A) and (B), Guidance Memo No. 22-2012 proposes a deviation between pre-development and post-development drainage areas of no more than 10%. While this approach might work in urban areas of the Commonwealth, it is not practical for large scale solar projects and is not the currently accepted state practice for SWM. The provisions that permit DEQ to require an applicant to redesign post-development are not workable for large scale solar projects, which are usually subject to a power purchase agreement over a long period of years. Perhaps DEQ could consider a “volume” approach instead of a “drainage area” approach to address this policy objective.

These proposed changes in state practices for SWM set out in Section 5.200 (A) and (B), Guidance Memo No. 22-2012 will likely significantly impact the amount of land needed for large scale solar projects, in addition to the costs of design and engineering, effectively requiring the solar developer to oversize the SWM facilities in each large scale solar project to make sure redesign does not happen once the solar project is built and deal sold, one way or the other. The Joint Parties respectfully request this concern be addressed in the final Guidance Document.

Major Concern #3

With respect to Section 3.307 regarding offsite sheet flow easements, the Joint Parties’ primary concern is subsection D, which has to do with offsite discharges through drainage easements. As written, this may require the developer to acquire additional land or request easements from adjacent landowners to meet the offsite easement requirement, despite the regulations lack of a mechanism to compel these easements. The Joint Parties recommend that the regulations defer to local jurisdictional authority regarding offsite drainage easements unless the development requires a new man-made drainage system.

Major Concern #4

With respect to Section 5.301 concerning pre-development runoff curve number selection methods, this section seems to be designed to push most land use into worse/more flood prone hydrologic soil groups (“HSGs”), whether or not that is the reality on the ground and irrespective of the surrounding adjacent land’s preexisting CN designation. While the Joint Parties agree that certain post development activity may contribute to the compaction of soil in such a way that it impacts drainage, the pre-development provision assumes that a given area is automatically moved to its next lowest HSG factor. The Joint Parties suggest that these sections be removed or reworded such that the provisions within are only triggered when recent adjacent developments suggest that the soil condition conflicts with those in the National Resource Conservation Service Engineering Handbook.

Major Concern #5

With respect to Section 5.500 concerning solar panel array configuration, the Joint Parties appreciate that DEQ is intending to provide potential flexibility to solar developers to soften the impact of solar panels being designated as “continuous impervious surfaces” for purposes of stormwater management. However, the Joint Parties are unfamiliar with rain sensing technology that orients panels in a vertical position during heavy rainfall. Such technology may well be prohibitively expensive, and vertically oriented panels may also pose a safety concern from a wind loading perspective.

Major Concern #6

Kimley-Horn, Timmons Group, and Strata Solar each submitted detailed comments on Guidance Memo No. 22-2011 and Guidance Memo No. 22-2012 at CHESSA’s request. The Joint Parties hereby associate their comments with those three sets of comments, as they are submitted. No doubt, there will be other industry and organizational comments as well.

Closing:

The Joint Parties appreciate the opportunity to comment on Guidance Memo No. 22-2011 and Guidance Memo No. 22-2012 and look forward to continuing to work with DEQ to address concerns and implementation of Guidance Memo No. 22-2012.