The Virginia Forest Products Association (“VFPA”) offers the following comments on the proposed amendments to 9 VAC 15-60 to comport with the requirements of Chapter 688 of the 2022 Acts of Assembly. VFPA was appointed in HB 206 to the workgroup as a stakeholder, and we actively participated in the Regulatory Advisory Panel (“RAP”) process. While the proposed amendments cover a variety of issues within the PBR regulation, our participation in the RAP was focused on forestry concerns, specifically how commercial timber availability and harvesting could be impacted by the directive of HB 206 and the contemplated amendments to the current PBR regulation.
To summarize our comments, we appreciate Delegate Webert’s legislative intent to mitigate forests lost to solar development. That said, our association is concerned at this point in the process about the complexity and costs of the mitigation scenarios and if it could have an unintended consequence of actually decreasing commercial harvesting potential. VFPA members believe in free markets and less government regulation; therefore, this approach (albeit well-intended) may impact commercial timber availability and pricing, a primary concern for our association.
The first mitigation scenario would require developers to locate acreage equal to that disturbed by their project within the same watershed and place that land under a conservation easement with an environmental group that holds easements, such as the Virginia Outdoors Foundation, the Nature Conservancy or any other group that meets the requirements of 10.1-1009.
VFPA has concerns with this approach, as many easements held by environmental/conservation groups don't allow for traditional timber harvests, including clear cuts. While some may allow for the removal of dead or diseased trees, or maybe selective thinnings, groups such as those listed above have a mission to conserve trees - not harvest in the traditional silvicultural tradition. While the proposed regulation states “Every conservation easement for forest land shall allow silvicultural activities on the conserved land” we are concerned that these groups will push back on this language allowing for, in essence, commercial timber harvesting on their watch.
In this scenario, a solar developer may clear 500 acres of trees for a solar project. To mitigate this forest loss, they may engage in a conservation easement with one of these groups to preserve 500 acres. The potential net effect of this type of mitigation is instead of sawmills losing 500 acres for future harvest, we have lost 1,000 acres if truly commercial timber harvesting is in any way discouraged under these easements.
While the mitigation easements are only for the duration of the project (typically 35-40 years), the net effect could be a doubling of lost acres for a generation and potentially a lifetime if the solar facility is continuously renewed and these easements are not managed as the regulation proposes.
The second type of mitigation scenario is "payment in lieu of" mitigation. The concept is that instead of a solar developer finding and procuring land on their own and entering into a conservation easement with an environmental group, the developer would pay a fee to cover lost acreage and remit that money to the state Department of Forestry. That office would locate suitable land and place it into an easement that would allow for traditional timber harvesting.
While this approach gives the timber industry more comfort, the bottom line is it is still placing potentially large tracts of private land under government oversight instead of letting the free market and landowners determine what happens on their property. The assumption is that the tax benefit will pass through to the landowner for placing their land under the easement for the life of the solar project. It will be interesting to see ultimately what volume of acreage would be required for this type of mitigation and if there would be enough willing landowners to create an acre-to-acre match for lands lost to PBR projects.
Finally, VFPA’s greatest concern is that from the developer’s perspective, mitigating the land under either scenario may become so complex and/or costly that it pushes project design outside of the PBR process and as an unintended consequence, encourages development of large projects over 150 MW, where no mitigation is required at all. In this case, projects could easily need tracts ranging from 4,000 to 8,000 acres - a potentially consequential impact on the sawmill business if this type of solar development becomes more frequent.
