Comments on Proposed Changes to PBR Regulations (April 19, 2021)

9VAC15-6010

“…with a view to the project” – in the Tidewater region, this will be a very limited geographic area and a helpful change.  In the mountain region, a property could be 30+ miles away and still have a “view” to the project.  More precision in this definition would be helpful as it cannot reasonably be intended that properties, for example 30 miles away, must be evaluated.

“Disturbance zone” appears to clearly include an area 100’ beyond actual disturbance.  If this is intended, then greater precision in language elsewhere in the regs is needed – see below citations.

“Open Area” presumably includes the disturbance zone as defined herein.  If not, greater precision is needed.

“Responsible Person” – is a principal executive officer intended to mean only the City Manager or County Administrator, or may it include Deputies, Assistants or other executive officers in similar positions, and may it include department head level persons such as Directors of Public Works, etc.?  Ranking elected official would imply a Mayor in a City Council form or a Chairperson of a Board of Supervisors.  Is that what is intended?  Sometimes a Vice Mayor or Vice Chair is called on to act officially in these sorts of capacities.

“Virginia Natural Landscape Assessment Ecological Cores” uses the term “patches” which term is not defined and is not a readily measurable term.  The definition also includes a measurement expressed in meters which is not the customary unit of measurement in Virginia.  Please revise.

9VAC15-60-30

Section A.1.a.(2) uses “chief administrative officer and chief elected official” while the definition of “responsible person” uses the terms “principal executive officer” and “ranking elected official” – is the use of different terms here intentional or an oversight?

In this same section, is it possible to allow (or at minimum make clear, indeed encourage, but not require) that the notifications required by the original applicant and the new applicant be given through a single form or notice to help expedite the process?

9VAC15-60-40

Section C.2. requires survey of architectural resources within a half mile but does not allow for the “view to” limitation.  That limitation is allowed in the section dealing with applications submitted after 12 months following the effective date.  What legitimate public purpose is advanced by not immediately allowing the same limitation to apply to applications submitted before 12 months following?  If it is appropriate then, why not immediately upon adoption?

9VAC15-60-45

Section B.1 uses distance from the “site” and from the “disturbance zone” differently, and they should be used consistently when assessing impacts.  There is no de facto “impact” from the portions of a site that are not disturbed.

Section C, without an express deadline for DHR to confirm that it has received an administratively complete analysis, the provision allowing for a complete application to be considered accepted if DHR has not responded with comments in 30 days is effectively meaningless.   Reports from consultants across the Commonwealth have for decades indicated that DHR is often THE long pole in the approval tent for a wide of range of project types that require DHR involvement.  Please revise to make workable and predictable.

Section C.3. should be amended to make clear that certain areas of a site are rarely if ever surveyed (steep slope areas, previously disturbed areas for example) and for solar projects, it should be made clear that such areas, undevelopable areas and/or areas the applicant is not proposing for development should NOT require field survey.

Additionally, the probability assessment and predictive modeling approaches to streamlining archaeological investigations have for many years been accepted and should be institutionalized so that qualified professionals exercising their professional judgements in such approaches are deemed valid and not require effectively perfunctory, and often time-delayed approval.  It adds unnecessary department workload, insults the professional integrity of qualified experts and delays processing of solar projects that the Commonwealth has expressed by policy and law that it wants to bring on line swiftly.

Section D.1.(a), (b) and (c) refers to “site” instead of “disturbance zone” when defining minimum search distances.  Regulations should be consistent and should relate regulatory burdens to measurable impacts, such that a large “site” boundary, with a constrained disturbance zone within it, should not be the basis for the distance threshold.

9VAC15-60-70

Section A.  Stating “disturbance zone with 100 foot buffer” is confusing and redundant in that disturbance zone has been defined to include a 100 foot buffer.

Section B. It should be clarified that depicting the Chesbay RPA areas on a context map covering 5 miles from the boundary should only be for those RPAs mapped by a locality or on another publicly available database.  It could be wrongly interpreted to refer to RPA areas based on site specific factors, and that is clearly not realistic for such a large area and on properties where an applicant has no authority to enter to perform site specific determinations.

Additionally, in Section B, “farmland” and “brownfield sites” are not defined in the regulations and could be interpreted differently by an applicant and the department.  Please define these terms with precision or make clear that the intent is only to show general areas meeting some colloquial understanding of what those terms mean.

Section C.1, same comment about disturbance zone with 100-foot buffer is redundant as the buffer is included in the disturbance zone.

9VAC15-60-80

Section B, same comment about disturbance zone with 100-foot buffer is redundant as the buffer is included in the disturbance zone.

9VAC15-60-90

Section B, how is an applicant to know which local newspapers reach low-income or minority populations in the area where the property is to be located?  If the area where the project is to be located is a majority minority population, does this then require that the newspaper be deemed to reach a population which is not in one of those minorities, but in what might be colloquially thought of as majority?  Few people, whether of low income, minority, majority, etc. read newspapers anymore, and even fewer read these sorts of classified ads, so is this provision accomplishing a meaningful public purpose?

9VAC15-60-100

Section D.4. should be clarified to refer to any information requested by the department within the confines of the application requirements, not an open-ended request, and there should be an opportunity for an applicant to respond within 30 days to a reasonable request that it is unable for stated reasons to comply within that timeline.

9VAC15-60-110

Section B, it is inappropriate to require the payment of a CAPZ mitigation fee in advance unless there is an express provision allowing for a timely refund of (reduction in) the payment in the event the project does not move forward or if it is downsized through final local permitting and engineering design and therefore no longer falls into a higher MW fee category.

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Thank you for the opportunity to comment.