Dear Director Paylor,

Timmons Group would like to offer comments to the proposed amendments to the Virginia Permit by Rule for Small Solar Renewable Energy Projects. Our firm has assisted clients in preparing multiple Virginia Permit By Rule (PBR) Small Solar Renewable Energy Project applications and we work directly with the solar industry on permitting and regulatory issues. Our solar clients range from Virginia-based companies to international clients, and we are fortunate to have considerable experience within the Virginia permitting landscape. We offer comments with our perspective of compiling thousands of pages of PBR application materials for solar projects and facilitating the authorization of many of the previously issued PBR authorizations, as well as participation in all of the Regulatory Advisory Panel Meetings convened during 2019-2020. We would like to offer comments related to ecological cores and onsite surveys for natural heritage resources.

Ecological Cores

The proposed requirements (9VAC15-60-45 D 1 c, 9VAC 15-60-55 D, and 9VAC15-60-65 E) to utilize the Virginia Natural Landscape (VaNLA) Assessment of Ecological Cores to identify, and in the case of C1 and C2 ecological cores, require mitigation, is not based on data that is intended to be utilize for project-specific analysis and is not current.

The VaNLA is a “landscape-scale geospatial analysis” [1] that 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’) resolution. VaNLA utilizes land cover data from the National Land Cover Database (NLCD) collected in 2011, thus the information that informs ecological core classification is currently ten years old. While the Virginia Department of Conservation and Recreation (VDCR) updated ecological cores in 2017, our understanding is that the data is based on NLCD from 2011.

As a result, we are aware of prospective projects wherein high core designations have been placed on lands that in reality have been recently cleared/timbered (before consideration of a potential solar facility). In other cases, lands historically utilized for silviculture have been designated with high core values, highlighting the lack of complex analysis used to associate ecological cores. This is because the 2011 NLCD identifies three forest types, none of which can be associated with silviculture operations.

The proposed regulations appear to require that even in cases where trees/habitat are no longer present on a property, or where trees have been cut as part of a silviculture operation, solar PBR applicants may be required to mitigate for lands designated as ecological cores by a GIS analysis not intended for site-specific analysis.

Additional detail on expected mitigation and how mitigation costs were calculated are necessary to evaluate the impact of this requirement on the regulated community. In the Department of Planning and Budget’s Economic Impact Analysis, a range of example ecological core mitigation costs is provided from $45,131 to $701,194. Given this broad range, developers need more clarity on how costs are calculated to fully understand the potential impact on projects.

Furthermore, as one of the benefits of the PBR process versus State Corporation Commission (SCC) Certificate of Public Convenience and Necessity (CPCN) is to reduce regulatory uncertainty, is there a similar requirement for ecological core assessment with the CPCN process? With potential mitigation costs in excess of $700,000, if this requirement does not apply to the CPCN process, it would be hard to imagine developers electing to permit through the PBR.

Onsite Surveys for Natural Heritage Resources

The requirement (9VAC15-60-45 D 1 d) to conduct onsite surveys for natural heritage resources recommended by the VDCR’s Division of Natural Heritage (DNH) introduces uncertainty into the regulatory process. As this is a new process and not previously required, and therefore many in the regulated community are not familiar, it will require extra time and cost to fulfil. We are aware that DNH correspondence can confuse applicants when confronted by an advisory agency recommending to the applicant to consider paying fees for analytical services that may be more suitable for the private sector to perform. As one of the benefits of the PBR process versus SCC is to reduce regulatory uncertainty, is there a similar requirement for onsite surveys of natural heritage resources with the SCC CPCN process?

We appreciate the opportunity to participate and provide comments.

Sincerely,

Julia Jenkins

Rick Thomas