Purpose of Notice: The Director of the Department of Environmental Quality (DEQ or the Department) intends to consider the consensus recommendation of the Regulatory Advisory Panel (RAP) members that it continues to not be necessary, or appropriate, for DEQ to develop a permit by rule (PBR) regulation for projects that generate electricity from water related renewable energy sources (i.e., falling water, tides, wave motion, geothermal power). Prior to the Director’s deciding whether to accept the RAP members’ recommendation, DEQ is announcing an informal public comment period during which members of the public may submit their views concerning the RAP members’ recommendation.
Background: 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.” DEQ filed a Notice of Intended Regulatory Action (NOIRA) for each renewable energy resource (or group of related resources). The Water Related NOIRA (9VAC15-80) was originally posted on August 15, 2011, and stated in pertinent part, “[t]he purpose of this regulatory action is to implement 2009 state legislation requiring the Department of Environmental Quality to develop one or more permits-by-rule for water-related energy projects with rated capacity not exceeding 100 megawatts, if the Department determines that a permit-by-rule is necessary.” The Water Related RAP was established in September 2011 to consider a potential PBR for the water related renewable resources that are listed in the 2009 statute; i.e., falling water, wave motion, tides, and geothermal power. After careful consideration of the issues, it was the consensus recommendation of the Water Related RAP 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. Although no public comment was required by law, the Department chose to conduct a 30-day information public comment period in order to afford the public an opportunity to comment on the RAP’s recommendations prior to the Director’s final determination. This comment period concluded on November 28, 2011, and no comments were received. On December 2, 2011, the Director decided that (i) 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 and (ii) DEQ should 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. On July 15, 2014, DEQ contacted members of the Water-Related RAP to initiate the 2014 review of the Director’s 2011 decision. RAP members were provided with the Director’s 2011 Decision Memorandum, along with supporting technical and legal analyses from 2011; as well as legal analysis received in March 2014 from the Federal Energy Regulatory Commission (FERC) and the Virginia Office of the Attorney General (OAG) that the federal Hydropower Regulatory Efficiency Act of 2013, codified at 16 U.S.C. 2705, did not alter federal preemption of state authority over hydroelectric projects. DEQ asked RAP members to consider, based on these past and present technical and legal analyses and their own expertise, whether the RAP’s and Director’s 2011 conclusion is still valid and appropriate. RAP members recommended by unanimous consensus that it continues to be appropriate for DEQ not to develop a water related PBR regulation and that no regulatory action should be conducted at the present time. Additional information about this recommendation is available on DEQ’s website at http://www.deq.state.va.us/Programs/RenewableEnergy/WaterRelatedEnergy.aspx.
Public Comment Period: September 18, 2014 to October 20, 2014
How to Comment: DEQ accepts written comments by email, fax and postal mail. All written comments must include the full name, address and telephone number of the person commenting and be received by the DEQ staff contact listed below no later than 11:59 p.m. on the last day of the comment period. All written comments, exhibits and documents received are part of the public record.
Final Decision: The Director's final decision on whether a PBR is necessary at the present time for projects that generate electricity from falling water, wave motion, tides, or geothermal power will occur at some time after the public comment period closes.