December 16, 2024 

RE: Small Solar Renewable Energy Projects Permit Regulation Amendment 

Sun Tribe Development, a Charlottesville-based utility-scale solar developer, is pleased to provide the following comments in support of the Department of Environmental Quality’s effort to enact regulations that provide confidence to the solar community in developing thoughtful, well-sited solar facilities. Our company has distinguished itself as a values-based organization with a focus not only on quality work, but also on integrity, character, and community-mindedness.  With that framework in mind, Sun Tribe Development believes in a viable path forward that upholds the intent and ethos of HB206 and assists the Commonwealth in addressing its rapidly increasing energy demand. 

Overall, Sun Tribe Development is supportive of the mission of the Permit by Rule process and values the opportunity for engagement with DEQ.  In the spirit of collaboration and cooperation, we have drafted the following comments to clarify and adjust the implementation of HB 206 requirements. 

1. HB 206 asks for the Department to consider “(ii) the cost of mitigation relative to the project cost, including the cost of proposed mitigation to rate payers.” We believe that this factor is currently not addressed in the proposed regulations. We are concerned that the aggregate cost for compliance among solar facilities sited and permitted within the state will have a significant negative impact on ratepayers.  First, the proposed regulations in their current state potentially threaten cost-effective and locally supported projects that would be otherwise viable and provide economic assistance to localities. Second, for projects that can survive and develop within these proposed conditions, high mitigation costs will be passed down to the ratepayer through the utility byway of overall higher project costs or higher prices for energy sold from these facilities to the utility.  

2. Not all projects are subject to the permit-by-rule process, namely projects above 150 MWac or other projects that go through the CPCN process. This regulation as proposed has the potential to disadvantage these small projects in favor of much larger projects which already benefit from economies of scale. Sun Tribe Development specifically focuses on projects 1-150 MWac, so is particularly aware of this balance. 

3. As many other parties have commented, Sun Tribe Development advocates for the definition of the disturbance zone to be based on the project’s proposed land disturbance limits rather than its current proposed definition (within a 100-foot buffer from that boundary). We believe this is the most accurate way to mitigate the actual disturbance caused by a project, as well as ensure that the acreage mitigated is truly within the control of the project. 

4. As many other parties have commented, Sun Tribe Development is concerned about the accuracy of the Virginia Natural Landscape Assessment Ecological Cores dataset. The age of the underlying aerial imagery upon which the dataset was developed, the scale and raster format of the dataset, and the inability to adjust based on recent site conditions are all concerning and not aligned with the intent of the rest of the proposed text. Sun Tribe Development is appreciative that the other datasets referenced in the proposed text are based on known scientific inputs and developers are allowed the ability to consult experts to adjust boundaries where they are deemed inaccurate, but DEQ has stated that the Ecological Cores dataset does not allow this expert adjustment to occur. Sun Tribe Development requests that DEQ relies on a more accurate and defined dataset to define and evaluate high-value forest land across the state. 

5. Sun Tribe Development appreciates the value of the DEQ PBR staff’s time and notes that developers are more likely to engage with staff earlier on in the development process, especially where datasets defining mitigation acres are uncertain or open to interpretation. This coordination will likely occur far before NOI stage. 

6. We request clarification around reporting and mitigation requirements for areas that may exist within the disturbance zone that are characterized as existing within multiple datasets (for example, prime agricultural soil and forest land). We note that 9VAC15-60-60-E-6 addresses the mitigation plan specifically, but we are requesting additional clarity for this scenario in other sections: 

1. 1. In 9VAC15-60-50 when determining if a project is deemed to have a significant adverse impact. For example, if a project disturbs 40 acres of contiguous forest lands and 15 acres of prime agricultural soils but 14 of those acres are overlain by both datasets, does the significant adverse impact get triggered? 

1. 1. Whether or not these overlain areas can utilize Partial Mitigation Options per Table 1 

7. Sun Tribe Development believes the most effective mitigation of ecological impacts occurs onsite or adjacent to those impacts. We request that DEQ staff consider how best to incentivize onsite mitigation for impacts addressed in the proposed text. Our main concern is the requirement that conservation easements be established in perpetuity when solar projects are scheduled to be decommissioned on a known timeframe. We believe landowners would be interested in conserving land adjacent to solar projects if the timeframe for easement is in line with the life of the solar facility, but they may be more wary to do so if the term is in perpetuity. 

8. Sun Tribe Development has experience working with landowners who operate large-scale timber plantations. We are concerned that this land use is being falsely valued above other types of land use that provides more ecological benefits, and thus we request that DEQ reevaluate the ecological value of this type of land use. Typical pine plantations consist of monoculture loblolly pine (or similar) that is planted and harvested on a 30-40 year cycle (similar to the life cycle of a solar facility). In addition to the loss of forest canopy on this recurring cycle, harvesting operations also disturb land cover due to heavy tracked vehicles conducting timbering operations. Additionally, although timber companies follow state forestry best practices in proximity to known wetlands, it is our professional experience that land in Virginia almost always has more extensive wetlands onsite than show up in desktop datasets, so destruction of forested wetlands is likely common in timber harvesting operations. After harvest, herbicides are used heavily to prepare for the next timber crop. Sun Tribe Development has seen projects where monoculture timber plantations have been characterized with a conservation rank of C1 or C2 even though this land use has occurred on the property for decades. We request that the ecological benefit of these practices is evaluated by DEQ and mitigation ratios and practices described in the proposed text are adjusted accordingly.