Permit-by-Rule & HB 206 Implementation Regulations

Strata Clean Energy Comments

 

Susan Tripp 

1111 E Main St Suite 1400
P.O. Box 1105
Richmond, VA 23218

 

Dear Ms. Tripp:

 

Thank you for the opportunity to comment on the proposed regulations amending 9 VAC 15-6, the Small Renewable Energy Projects Permit by Rule to comply with the requirements of Chapter 688 of the 2022 Acts of Assembly. Strata Clean Energy is a family owned and operated utility-scale solar and battery storage developer, EPC, and O&M company with a considerable footprint across the Commonwealth.

 

While we believe the newly proposed requirements of HB 206 are of good intention, we have identified several areas of concern that may require clarification or adjustment to ensure effective implementation.

 

Strata has contributed feedback and suggestions through our trade associations, American Clean Power Association, the Solar Energy Industries Association, and the Chesapeake Solar and Storage Association. We fully support the comments submitted by these organizations and have drafted some additional input below.

 

 

Section 1. Definitions (9VAC15-60-10)

 

Key recommendations:

• Several definitions are outdated or need further specifications
• Modify the definition of active cropping to ensure it does not conflict with the lifecycle stages of pollinator plants
• Modify the disturbance zone definition to only include areas where there is direct disturbance
• Ensure definition of forest land is consistent throughout the regulation
• Specify whether the 75% vegetative cover requirement applies solely to the grazed area
• Extend mitigation credit to include riparian forest buffers adjacent to intermittent and ephemeral streams

 

Some of the referenced definitions are outdated or overly broad and require updates.  

The definition of “active cropping including hayland,” should be amended to include a clause that allows for projects that are planting both pollinator species and hay to only mow the property once a year to maintain the health of the pollinator plant species. This will allow pollinator-friendly plants to complete crucial stages of their lifecycle (flowering and seed production) prior to harvesting hay.

The definition of "forest land" should be more clearly defined and should be consistent throughout the regulation. The definition should exclude hedgerows, isolated trees, and small isolated groups of trees less than one acre in size.

The definition for “Managed grazing” should have a clause adding a clarification to what area the 75% vegetative cover requirement applies.  Does it only apply to the “grazed area”?

“Riparian forest buffer," the mitigation credit should also be given for riparian forest buffers adjacent to intermittent waterbodies (i.e., streams) and ephemeral streams.

Strata recommends revising the current definition of "disturbance zone" in the proposed regulations. This term significantly expands the acreage subject to mitigation under HB 206, potentially impacting project eligibility for Permit-by-Rule (PBR) and natural resources review requirements.

Traditionally, disturbance zones account for construction-related impacts, such as laydown areas, but the proposed definition includes all land within 100 feet of disturbed areas, regardless of physical changes. This assumption leads to over-mitigation and unintended consequences, such as requiring mitigation for undisturbed forested land used as visual buffers or ecological resources, or land not owned by the applicant.

DEQ should clarify that solar projects should only mitigate directly disturbed land, and remove the "100 feet from the boundary" language, and exclude areas outside the applicant's control.

We support the definition of a C1 and C2 forest cores as 100 meters inward from the beginning of the designation – to avoid incidental issues as described above.

 

Section 2. Application for permit by rule for small solar energy projects (V9VAC15-60-30)

Key recommendations:

• Amend section A.1.D. so that the Department ownership change notification deadline is 90 days instead of 30 days.
• Amend section A.2.

 

Clarify Section A.1.D., “The applicant shall notify the department of any change of operator, ownership, or controlling interest for a project within 30 days of the transfer. No additional fee shall be assessed.” Change 30 days to 90 days to allow a reasonable amount of time to process the information and required forms.

Amend Section A.2., Strike “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, classified by the local assessor as forest for use-value assessment.”  This is not an appropriate request of the County and is out of place in the context of the County confirming that the project is in compliance with local land use ordinances.  It would be better directed to the Virginia Department of Forestry.

 

Section 3. Analysis of the beneficial and adverse impacts on natural and historic resources (V9VAC15-60-40)

Key recommendations:

• Reconsider William and Mary’s ownership of survey website
• Section C., The desktop study should be valid for at least 1 year and should be longer than 6 months
• Ecological Cores, pollinator scorecards, prime farmland, and forest impacts are not required for any other type of development
• Create clear guidance for a cost-effective means to verify presence of prime soils and ecological cores on a proposed site, without relying solely on outdated resources
• Clarify responsible party for site visit associated with the determination of significant adverse impacts
• Maintain previous survey requirement for cultural resources surveys

 

Under Section A.1., it is important to determine if William and Mary will be maintaining the bald eagle nesting location desktop website? What guarantee is there that the website will be maintained?

Under Section C., the preconstruction desktop survey of natural heritage resources has a validity timeline currently of 6 months that should be changed to a year.  Limiting the validity of the agency’s database results to 6 months creates an unreasonable cost and burden on the applicant to refresh the species study and update the report.

Strata has several concerns about the proposed regulations related to ecological assessments, cultural resource surveys, vegetation management, and mitigation requirements.

Strata has concerns on Section C., regarding the use of the Virginia Natural Landscape (VaNLA) Assessment of Ecological Cores to identify and mitigate disturbance of C1 and C2 ecological cores. The “landscape-scale geospatial analysis” assessed land cover at a ratio scale of 1:50,000, meaning that the analysis was completed statewide at roughly a 0.8-mile (4,166-foot) resolution. VaNLA utilizes land cover data from the National Land Cover Database (NLCD) collected in 2011, thus the information that informs ecological core classification will be at least fourteen years old.

Mandating full Phase 1 cultural resource surveys upfront for permitting is excessively burdensome, costing $200,000–$300,000. These surveys should depend on desktop and limited pedestrian survey results rather than being required early in the development process.

On-site wildlife surveys should not be blanket requirements but determined collaboratively between project proponents and state/federal wildlife agencies. DEQ has historically made recommendations beyond its jurisdiction, such as surveys for species managed by the Department of Wildlife Resources (DWR).

Using the Pollinator Smart Scorecard (Section C.2.), originally intended as a voluntary tool, for regulatory purposes is inappropriate. The scorecard, developed without industry input, is outdated and fails to account for challenges like soil composition, seed availability, costs, legal liabilities, fire hazards, and operational risks.

The requirement for 30% of the project area to be covered in pollinator plantings for reduced mitigation obligations is overly burdensome and impractical.

The final rule should clarify that prime farmland not under existing easements is eligible for mitigation credit (Section D.1.), providing developers with greater certainty.

 

Section 4. Determination of likely significant adverse impacts (9VAC15-60-50)

Key recommendations:

• Section D., The 10-acre threshold should be contiguous acreage of prime farmland soils as a management unit that can actually be farmed.  It is not fitting with the intent of the bill for mitigation to be required for scattered fragments of soil map units classified as prime farmland that are not contiguous and could not be farmed together.

 

Under 9VAC15-60-50, “Determination of likely significant adverse impacts,” Section C, a site visit is required for verification of disturbance zone but it is unclear who is managing this site visit, when it is conducted during the application process, or any associated costs for this site visit. Additional detail is needed in order to plan for and y finance this stage into project development timelines.

 

Section 5. Mitigation plan (V9VAC15-60-60)

Key recommendations:

• Amend Section D.
• Amend Table 1 in Section E.

Amend Section D. so that if an applicant can find C1 or C2 land available for conservation easements they should be allowed to mitigate anywhere in the state and not be limited to the mitigation district (watershed) where the project is located.  This would achieve conservation goals faster and more successfully.

• Section D., Conserving C1 in the same watershed at 7:1 is impossible.
• Section D., Conserving C2 in the same watershed at 2:1 is nearly impossible. Landowners would have to be willing.

Amend Section E.3. Table 1, Option 1, Add a definition for topsoil. We recommend referring to the topsoil definition in The National Soil Survey Handbook published by the Natural Resources Conservation Service.

Amend Section E.3. Table 1, Option 1, The mitigation ratio should be higher than 1:10. How is this a negative impact on prime farmland soils? The ratio should be 1:20.

Amend Section E.3.Table 1, Option 2, This ratio should be higher to properly recognize the effectiveness of these treatments, their cost and effort. Ratio should be 1:8.

Amend Section E.3., “Preserving soil on-site shall reduce but not eliminate the requirement for an easement or in-lieu fee.” – The amount of soil preservation on site should be adequately reflected in the requirement for an easement or in-lieu fee, including eliminating the need all together.

Amend Section E.5., The 10 acres of prime farmland soils should have to be contiguous.

Amend Section F.2., The project should also get credit for establishing new buffers since planting new buffers could have a higher benefit to water quality.

Amend Section H.2., This should be administered by the DEQ and not used as a way to funnel cash to the same NGOs that pushed for HB206.

Amend section B.3. Payment should be due when determination is issued that the application is administratively complete and the recomplete, person is notified in writing that the person is authorized to construct and operate the facility pursuant to this chapter.

No other types of development or industries in Virginia have similar regulatory requirements to those imposed on the solar industry through the PBR process. Solar energy is responsible for a very small percentage of forest and farmland conversion, yet the proposed regulations require the solar industry to be solely responsible for unreasonable and unworkable mitigation requirements.  

The costs associated with compliance with the proposed mitigation requirements were not appropriately evaluated during the Regulatory Advisory Panel (RAP) or DEQ analysis of the regulations, despite HB 206 requiring the cost of mitigation relative to the project cost to be considered, including the costs to rate payers. No evidence of ratepayer analysis is documented in the meeting minutes, Economic Review Form, or Agency Background Document. The Economic Review Form does not calculate the impact of the proposed regulations on ratepayers and does not assess how they will affect Virginia’s localities or the solar industry.

 

Section 6. PBR change of ownership, project modifications, termination and reporting (9VAC15-60-100)

Key recommendations:

• Section D.4., Change 30 days to 60 days.

 

The owner should have at least 60 days to provide any information requested by the department instead of 30. As listed, 30 days is an unreasonable timeline.  Increasing the response time to 60 days will allow a more reasonable amount of time to process the information and required forms and ensure a complete response.

 

Section 7. Fees for projects subject to Part II of this chapter (9VAC15-60-110)

Key recommendations:

• Section B.1., CAPZ mitigation should be part of the overall mitigation plan and not due with the application.
• DEQ should estimate administrative costs associated with in lieu fees.
• In lieu fees should reflect the typical value of a conservation easement for agricultural and forest use.
• In lieu fees should not punish solar development for curtailing residential sprawl.

 

Strata supports the use of in-lieu fees as a mitigation option under HB 206 but emphasize the need for clarity, fairness, and economic justification in their implementation:

The final rule should ensure that payment of in-lieu fees fully satisfies an applicant’s mitigation obligation, transferring liability to the mitigation provider.

The proposed $3,000 per acre minimum is excessive compared to recent data, such as the $1,103–$2,100 per acre value of conservation easements in rural areas. A recalibrated fee structure reflecting actual land values is recommended.

For a typical 240-MW project, in-lieu fees total approximately $1.6 million, representing 10% of annual state farmland conservation funding. The economic basis for these fees, especially ORM’s overestimated per-acre contributions of farmland and forests, requires revision to reflect real-world values.

The regulations overlook solar's substantial economic contributions, including thousands of jobs, millions in tax revenues, land-lease payments, and significant capital investment in Virginia.

DEQ’s method of calculating conservation easement value based on the difference between use value and full assessed value penalizes developers preserving land most at risk of residential or commercial development. An alternative approach using regional conservation easement values is recommended.

DEQ should clarify the administrative costs associated with in-lieu fees, as estimates range from $15,000 to $30,000 per easement. It is unclear whether these fees are proportional to acreage, land type, or a flat rate.

 

Conclusion

Thank you for your consideration of our perspective. Strata Clean energy is committed to responsible land and environmental stewardship throughout the duration of our projects, and we seek to ensure that mitigation requirements are appropriate and realistic in order to achieve the most effective outcomes. Please do not hesitate to reach out if you have any questions or if we can be of any further assistance.

 

Sincerely,

 

Marshall Conrad

Strata Clean Energy