Regarding the proposed action to amend 9 VAC 15-60 to comport with the requirements of Chapter 688 of the 2022 Acts of Assembly, the following comments are offered.  The intent of these comments is to offer areas of needed clarification in the Permit by Rule application and review process to ensure consistency.

It is our understanding that of Chapter 688 of the 2022 Acts of Assembly, as written, includes a grandfathering clause. We believe it would be helpful if the grandfathering provisions, and requirements to prove that a project is grandfathered, should be written in the regulations.  The regulation should also clarify to which sections the grandfathering would apply.

It is our opinion VDCR’s EcoCores dataset is fallible and not suited for the use in which this proposed regulation would apply it.  The EcoCores dataset was last updated in 2011, and it does appear that VDCR has plans to update it. VDCR’s website that the dataset was created to inform “landscape-scale” conservation efforts, not determine site-specific mitigation thresholds. The EcoCores data is a low-resolution raster dataset, making it an inadequate resource for determining site-specific impacts.  Furthermore, it our understanding from the public hearing Q&A session held at the DEQ, that if an EcoCore has been degraded since the dataset was created in 2011, that would not factor into the required mitigation. Therefore, a project may be stuck mitigating for impacts it did not cause.

In addition to the above over-arching comments, we offer the below comments/questions regarding specific sections of the proposed regulations.

9VAC15-60-10 Definitions

"Contiguous forest land" means forest land that is adjoining, including areas separated by (i) any waterbody; (ii) roads, driveways, or impervious surfaces, including compacted gravel, 40 feet or less in width; and (iii) clearings for utilities 200 feet or less in width.

Comment: The term waterbody should be clarified to a waterbody less than 200’ wide.   We believe waterbodies 200’ and greater would “break” the contiguity. 

"Forest land" has the same meaning as provided in § 10.1-1178 of the Code of Virginia, except that any parcel shall be considered forest land if it was forested at least two years prior to the department's receipt of a permit application. For the purposes of defining forest land in this context, forest trees shall not be limited to commercial timber trees.

Comment: Suggest re-wording the highlighted statement to, “prior to the department’s receipt of a draft permit application at the start of the public notice period”.

9VAC15-60-30 Application for permit by rule for small solar energy projects with rated capacity greater than five megawatts MW and disturbance zone greater than 10 acres

2c) An applicant seeking changes for a project that results in an increase of MW or acreage shall submit a new NOI using a format approved by the department.

Comment: Regulation should clarify in what scenarios the clock on the 90-day NOI period would restart.

2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a  certification by the governing body of the any locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;. The certification shall also include a statement of the area of the project enrolled in a forestry preservation program pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia (i.e., classified by the local assessor as forest for use-value assessment).

Comment/Question:  Does this mean land in an ag/forestall district? What if the CUP/zoning approval lifts this designation?

1a. The authorization to construct and operate shall become invalid if (i) a program of continuous construction or modification is not begun within 60 months from the date the PBR or modification authorization is issued or (ii) a program of construction or modification is discontinued for a period of 24 months or more, except for a department-approved period between phases of a phased construction project. Routine maintenance is not considered a modification of a project.

Comment/Question:  Does this apply to projects that have been issued PBRs prior to this regulation taking effect?

4. If the application was not approved because a proposed mitigation plan was not provided by the applicant as part of the initial application and the department determines there are significant adverse impacts, the applicant shall provide a 45-day public comment period detailing reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts and to measure the efficacy of those actions. The public comment shall follow the procedures set forth in 9VAC15-60-90, except that the public comment period shall be 45 days.

Comment/Question: Does this mean that only deficiencies in the mitigation plan will require a new public comment period?

2. Architectural survey. The applicant shall conduct a field A Phase I architectural survey of all architectural resources, including cultural landscapes, 50 years of age or older within the disturbance zone and within one-half mile of the disturbance zone boundary and evaluate an evaluation of the potential eligibility of any identified resource for listing in the VLR. The architectural survey area may be refined by the applicant based on an analysis of the project's existing viewshed to exclude areas that have no direct visual association with the project. The applicant shall provide detailed justification for any changes to the survey area.

Comment/Question: How does a project justify this? Desktop/GIS based viewshed analysis or is a field visit required?

C. The applicant shall also conduct a preconstruction desktop survey of natural heritage resources and Virginia Natural Landscape Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal.

Comment/Question:  Is this the initial submittal prior to the public comment period or the final submittal after the public comment period? The 90-day NOI waiting period, plus a 45 day public comment period is already 4.5 months. It is likely that projects will have to consult with DCR twice during the PBR in order to meet this requirement.

2. The applicant may propose to the department an alternative map of the prime agricultural soils on the site based on a report prepared by a professional soil scientist licensed by the Commonwealth of Virginia. This report shall include records of soil samples and other documentation proving the boundaries of prime agricultural soils on the site that are inconsistent with the Web Soil Survey.

Comment/Question:  Will the report/findings be subject to review and confirmation by DEQ?

9VAC15-60-60 Mitigation plan

D. Mitigation measures for significant adverse impacts to natural heritage resources described in Virginia Natural Landscape Assessment Ecological Cores shall include all reasonable measures to avoid and minimize significant adverse impacts. The applicant shall demonstrate in its mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. Additional proposed actions shall include practices to minimize or offset significant adverse impact through activities to protect, restore, or enhance the affected or similar resource. If impacts to C1 or C2 forest cores cannot be avoided, mitigation shall be required in the form of a conservation easement. For disturbance of C1 forest cores, the applicant shall provide a conservation easement for land containing C1 forest cores within the same mitigation district at a mitigation ratio of seven to one. For disturbance of C2 forest cores, the applicant shall provide a conservation easement for land containing C2 forest cores within the same mitigation district at a mitigation ratio of two to one.

Comment/Question: Does the grandfathering clause included in Chapter 688 of the 2022 Acts of Assembly apply to impacts to EcoCores, or only prime farmland soils and forestland? If impacts to EcoCores are exempt from the grandfathering provision, this would have a devastating effect on projects currently under development.

2. The mitigation ratio may be reduced by providing conserved land containing riparian forest buffers within the easement. For riparian forest buffers, the mitigation ratio shall be reduced to one to two. Riparian forest buffers shall be a minimum of 35 feet. The portion of a riparian forest buffer exceeding 300 feet in width shall not count for purposes of the enhanced mitigation ratio.

Comment/Question:  Can lands that are being used as Conserved Open Space for water quality also be put into perpetual easements to offset mitigation requirements for the PBR?

6. When significant adverse impacts affect prime agricultural soils overlain by forest land, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one. For example, disturbance of 11 acres of prime agricultural soils overlain by forest land shall require 11 acres of conserved forest land.

Comment/Question: Can the above strategies (i.e. Table 1 Options to Preserve Prime Agricultural Soils) be incorporated to reduce the mitigation requirements?

Comment/Question: How would the overlap of EcoCores on either prime farmland soils or forest land be taken into consideration for mitigation calculations?

4. An applicant may propose innovative alternatives to the required mitigation. An example could include afforestation of degraded land. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

Comment/Questions: Does this have to be offsite? How is degraded being defined?

2. Closing on any required easements shall occur within one year of the date of issuance of the PBR, unless extended by the department for good cause. Any superior lien shall be subordinated to the easement at closing.

Comment/Question:  What if the array area shifts during Site Plan and the amount of off-site easements changes?

9VAC15-60-70 Site plan and context map requirements

8. Expected types and approximate areas of permanent stormwater management facilities;

Comment:  We are assuming that this will be a conceptual level stormwater management plan, as the detailed construction plans are not typically prepared at this stage of the development. 

C. In the event an approved PBR includes mitigation requirements pursuant to 9VAC15-60-60 E, F, or G and the proposed mitigation zone changes from what is shown on the site plan approved with the PBR, the applicant shall submit a final development site plan including tabulation of areas required pursuant to subsection A of this section. The final development site plan shall be submitted to the department along with conservation easements or the in-lieu fees required pursuant to 9VAC15-60-60. Provided the changes were the result of optimizing technical, environmental, and cost considerations and do not materially alter the environmental effects caused by the facility or do not alter any other environmental permits that the Commonwealth requires the applicant to obtain, the final development site plan shall not be deemed a revision of the PBR.

Comment/Question: Does this mean that if the PBR proposes to impact 50 acres of prime ag soils, you can shift the arrays as long as you don’t impact any more than 50 acres? Since the off-site easements will have already been purchased or the in-lieu fees already paid, optimizing the array area out of these areas isn’t really incentivized unless a refund is an option.

9VAC15-60-100 Change PBR change of ownership, project modifications, termination and reporting

e. For projects that contain mitigation for view shed protection or historic resources, a post-construction demonstration of completed mitigation requirements according to the approved mitigation or landscape plan within 90 days of completion of such work.

Comment/Question:  How will this be determined? Is showing that the trees have been planted enough? Or will trees have to be at certain height/maturity?