Thank you for the opportunity to comment.  The Nature Conservancy supports the development of regulatory amendments to address enhanced mitigation for disturbance of forest cores with very high and outstanding ecological integrity using updated mapping and definitions which can be applied in the field to verify the mapped resources.  We would like to assist in the development of these amendments by serving on the Regulatory Advisory Panel that DEQ intends to convene.  We request that Judy Dunscomb serve as our representative, and her contact information is as follows:

Judy Dunscomb

Senior Conservation Scientist

The Nature Conservancy

652 Peter Jefferson Parkway, Suite 190

Charlottesville, VA 22911

jdunscomb@tnc.org

804-951-0573

I am pleased to submit these comments on behalf of the Mid-Atlantic Renewable Energy Coalition (MAREC).  MAREC is an organization of renewable energy developers who are on the front lines of delivering clean energy to citizens of the mid-Atlantic states. MAREC's members are committed to advancing renewable energy technologies to enhance environmental sustainability, diversify the electric generation mix, and stimulate economic growth.   As DEQ moves forward with this regulatory process to amend 9VAC15-60 to include mitigation for forest cores, MAREC would request to participate as a member of the Regulatory Advisory Panel that DEQ intends to convene.  We request that Evan Vaughan serve as the member of the Panel on behalf of MAREC.  His contact information is as follows:

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.

We appreciate the opportunity to provide comments on the proposed regulatory action concerning mitigation for forest core impacts within the Small Renewable Energy Projects (Solar) Permit by Rule (9VAC15-60). As stakeholders in the renewable energy development process, we respectfully submit the following considerations for DEQ’s review:

Technical Concerns with State-Wide Modeling Assumptions

• We encourage transparency on how previously proposed mitigation ratios have been derived in the absence of finalized mapping tools or agreed-upon definitions of high-integrity forest cores.
• A primary concern surrounding the reliance on DCR’s Ecological Cores was that the dataset’s foundational algorithms created an output that is heavily dependent upon state-wide model assumptions. The maps represent criteria that are given varied importance in space based on proximity to other features, resulting not only in an unverifiable field circumstance, but also in a description of land which is unreliable when measuring actual impact caused by land disturbance. DCR's Ecological Cores output is suggestive in nature and does not provide, or seek to provide, a measure of need for mitigation that is dependable for regulation. This having been decided by previous RAP sessions, what methods will DEQ employ to justly develop a dataset that solves this disconnect?
• In the event that impact to forest cores requires mitigation, the mitigation ratio should be 1:1. Justification for higher ratios than are actuated by impact should be demonstrated by literature and case studies.

Environmental, Landowner, and Economic Development Concerns

• The previously proposed mitigation ratios for forest cores may introduce new costs and constraints for landowners and project developers. It may be helpful to assess whether such requirements could disproportionately affect rural landowners whose forested land will become economically impracticable for an otherwise viable land lease.
• To what extent is the proposed regulatory action consistent with the Commonwealth’s public interest in expanding renewable energy under the Virginia Clean Economy Act? While HB 206 directs consideration of impacts to forest and agricultural lands, it does not specifically reference forest cores. Clarifying how this continued regulatory action aligns with legislative intent and broader energy policy goals would strengthen the rationale for its implementation.

We appreciate DEQ’s commitment to stakeholder engagement and look forward to continued dialogue as this regulatory action advances.