Thank you for the opportunity to comment on the Notice of Intended Regulatory Action (NOIRA) titled “Amend 9VAC15-60 to include mitigation for forest cores.”  We appreciate the Virginia Department of Environmental Quality’s (DEQ) efforts to align solar permitting regulations with conservation priorities.

Ecological Cores, as defined by the Virginia Department of Conservation and Recreation (DCR), provide a valuable model for large-scale conservation planning and environmental analysis across the Commonwealth. According to DCR, the Virginia Natural Landscape Assessment identifies large, contiguous patches of natural habitat, referred to as "Cores," which include forests, marshes, dunes, and beaches with at least 100 acres of continuous interior habitat. These areas are ranked based on environmental and species diversity, water quality benefits, and habitat quality.

As a civil engineering firm experienced in preparing Permit by Rule (PBR) applications, including site design and mitigation plans, we respectfully submit the following comments and questions:

1. Scope of HB 206: Chapter 688 of the 2022 Acts of Assembly (HB 206) directs DEQ to include mitigation measures for impacts to prime agricultural soils and forest lands. The latest revisions to the regulations appear to fully implement that directive. Expanding the scope to include mitigation for impacts to Ecological Cores may exceed the specific intent of HB 206.
2. Overlap with Forest Mitigation: If mitigation for Ecological Cores is introduced, would this be in addition to the mitigation already required for forest impacts under the updated regulations? Clarification is needed on whether there would be cumulative or overlapping mitigation obligations.
3. Intended Use of Ecological Core Data: DCR’s own guidance states that the Ecological Cores dataset was designed to inform landscape-scale conservation planning, not for parcel-specific impact assessment or for determining mitigation on a per-acre basis.
4. Data Format and Usability: The Ecological Cores dataset is raster-based, and thus lacks precise, field-verifiable boundaries. This makes it impractical to map core edges accurately on-site plans or field delineate them for avoidance or mitigation purposes.
5. Outdated Dataset: The Ecological Cores dataset was developed in 2011, and to our knowledge, DCR does not plan to update it. As such, it represents a historical snapshot of land cover conditions from over a decade ago and may no longer reflect current on-the-ground conditions.
6. Scope of Natural Features Included: Ecological Cores are not limited to forested areas; they also encompass marshes, dunes, and beaches. While these landscapes are ecologically important, they fall outside the forest-focused mitigation framework outlined in HB 206.
7. Economic Impact of Mitigation: If mitigation for Ecological Core impacts is required, we encourage DEQ to carefully consider the cost implications. High mitigation ratios or fees could render some solar projects economically infeasible, potentially limiting the development necessary to meet the goals of the Virginia Clean Economy Act.
8. Impacts on Landowners: Elevated mitigation costs may also limit private landowners’ ability to use their land for solar development, potentially hindering financial opportunities for families and rural communities.
9. Grandfathering Provisions: The NOIRA indicates that this proposed amendment is a response to HB 206. Would the grandfathering provisions included in HB 206 for forest lands and prime agricultural soils also apply to Ecological Cores?
10. Regulatory Certainty and Permitting Pathways: One of the key benefits of the PBR process is the regulatory certainty it provides to solar developers. Introducing mitigation requirements for impacts to Ecological Cores could create financial uncertainty during project planning. It is also unclear whether the State Corporation Commission (SCC) would apply similar mitigation standards for projects seeking approval through the Certificate of Public Convenience and Necessity (CPCN) process. If mitigation requirements under the PBR are perceived as more burdensome or less predictable, developers may increasingly opt for the SCC permitting pathway, potentially reducing participation in the PBR program.

Conclusion:

Our preferred outcome is for DEQ to maintain the recently adopted regulatory language, which effectively fulfills the requirements of HB 206. Adding mitigation requirements for Ecological Cores—given their broad scope, data limitations, and uncertain regulatory basis—could introduce unintended challenges to responsible solar development.

We thank the DEQ for the opportunity to provide these comments and hope this input supports a balanced approach to conservation and clean energy development in Virginia.