Pursuant to the Small Renewable Energy Projects Act of 2009 (§10.1-1197.5 et seq. of the Code of Virginia), the Department is directed to develop one or more permits by rule “if it is determined by the Department that one or more such permits by rule are necessary for the construction and operation of small renewable energy projects.” Regulatory Advisory Panels (RAPs) comprised of stakeholders were established for each renewable source category, (i.e., wind, solar, combustion and water), to make recommendations regarding a PBR for each energy source.  The Director has approved a PBR regulation for wind energy projects, solar energy projects, and combustion energy projects.

The water-related RAP made a consensus recommendation, in the fall of 2011, that it was not necessary or appropriate, under current conditions, for DEQ to develop a PBR regulation for renewable energy projects that generate electricity from falling water, wave motion, tides, or geothermal power.  The RAP further recommended that DEQ re-evaluate the potential need for a PBR regulation concerning these water related renewable energy resources in 2014, or sooner if circumstances or public requests so indicate. The Director issued a decision memorandum on December 2, 2011, in which he accepted the RAP’s recommendation.

DEQ completed the re-evaluation of the potential need for a PBR regulation concerning these water related renewable energy resources in 2014 and on November 6, 2014, the Director (1) determined that it was still not necessary, or appropriate, to develop a PBR and (2) directed a re-evaluation of the need for a PBR in 2019, or sooner if circumstances or public requests so indicate.

As part of the 2019 re-evaluation of the need for a PBR regulation concerning these water related renewable energy resources, an opportunity for the public to comment on the re-evaluation of the RAP recommendation for small renewable energy (water related) PBR regulation was announced through a Town Hall General Notice on January 10, 2020. The comment period began January 10, 2020 and closed on February 10, 2020. The notice provided an opportunity for the public to submit comments concerning the consensus recommendation of the RAP members. No comments were received during the public comment period.

Department staff are not aware of any circumstances, technological developments, changes to federal or state laws, or other factors that have changed since the Director\'s 2014 re-evaluation.

On February 28, 2020, the DEQ completed the re-evaluation and the Director (1) determined that it is still not necessary, or appropriate, to develop a PBR at the present time for small renewable energy projects that generate electricity from falling water, wave motion, tides, or geothermal power and (2) requested staff to advise him if technical developments or changes to federal or state law occur that would warrant the re-evaluation of the need for the development a PBR for small renewable energy projects that generate electricity from falling water, wave motion, tides, or geothermal power.