Please stop the clear cutting Virginia's forests for solar farms and development.

Repeal VCEA and protect our rural landscapes. A better more gradual solution should be considered to transition our energy sources. Solar farms actually create more problems. The existing trees are working hard to reduce the carbon footprint.  The less impact

on our environment should be the first parameter to which energy source is "friendly."

These solar farms destroy the very thing we are trying to save.

Virginia's forests are part of the beauty of our state. I have seen in Orange County the solar panels going up and they are ugly. We need to repeal VCEA. We need to have a variety of energy sources. I am on a fixed income and don't want to be paying more for my electricity. 

“A project shall be deemed to have a significant adverse impact if it would disturb more than 10 acres of prime agricultural soils.”

Our comments are bolded and pertain to 9VAC15-60/Sections A and B.

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

1. An NOI to submit the necessary documentation for a PBR to be published in the Virginia Register of Regulations.

  a. The applicant shall submit the NOI in a format approved by the department.

1. The Initial NOI filings shall be submitted to the department as early in the project development process as practical, but at least not less than 90 days prior to the start date of the public comment period as required under 9VAC15-60-90 or a minimum of six months before any motion to or voting actions are taken by county board of supervisors to approve or dismiss the Special Use Permit(s).

• Future, secondary or modification refilings of NOIs post issuance of a SUP shall restart the public hearing/meetings process and invalidate any previously submitted or approved SUPs issued by the DEQ or previously approved by the Board of Supervisors. 
   
• The initial and any subsequent re-filings or modification of/to any NOI shall contain the name(s) of the developer(s), partners, shareholders or any other entity maintaining an interest of 10% or greater and state if any of the principals, partners, shareholders or party of interest is a foreign citizen or foreign entity either private or governmental.  NOIs listing only the name of LLCs will not be accepted.
   
• The initial NOI shall contain the GPS coordinates of project boundaries.  In addition, it shall contain project wattage and the number, type, and chemical composition of the proposed solar panels.
   

9VAC15-60-60. Mitigation Plan. Section E, Part 3, Table 1:

For Option 2; I support changing the Mitigation Actions Required language to the following:

“Areas with changes in grade due to cut and fill with removal and return of topsoil, decompaction of topsoil to six inches following installation, maintenance of > 75% living vegetative cover for project lifetime, and decompaction to > 24" and surface soil amendment after decommissioning.”

Rationale: The current language specifies decompaction of the subsoil (in addition to topsoil) following installation which is not feasible in many site settings following panel installation. As long as the returned topsoil is decompacted to six inches, a certain amount of improvement in the quality of the subsoil is to be expected over the operational (20 to 30 years) period due to rooting and other processes, assuming 75% living vegetation is maintained. However, the deep ripping/decompaction to > 24 inches will be essential for site decommissioning to ensure reasonable levels of soil productivity for agriculture or forestry.  

My name is Allison Wickham and I am a pollinator professional. I have over two decades of experience in various forms of agriculture including grain crop production, hay, dairy, beekeeping, and pollinator habitat/native flowers. I have a degree in chemistry with minors in environmental studies and geography and a Master’s degree in soil and crop science. I have worked in agriculture my entire career and have been specifically managing bee hives and installing pollinator habitat time-and-a-half for the last five years.

1. The spirit of the proposed amended code is fantastic and critically important to environmental quality in the Commonwealth as solar grows, this is awesome.
2. You forgot beekeeping. Beekeeping should be specifically included in this code the same way sheep and other livestock, hay cutting, and crop farming have been specifically called out in the language. I assume those activities were called out because they are feasible on solar sites. I keep bees at solar sites and can testify that running an apiary on a solar site is feasible and therefore should be included. Here is the data to support the inclusion of specific language around beekeeping in this amended code:

The United States Department of Agriculture (USDA) considers beekeeping agriculture, and defines honey bee hives as livestock just like sheep. Beekeeping has its own chapter in the Virginia Code. Chapter 44. It falls under Title 3.2. Agriculture, Animal Care, and Food, just like the other specifically highlighted agricultural activities in this amended code. Bees and beekeepers are regulated and monitored by the Virginia Department of Agriculture and Consumer Services just like sheep, hay, and crops. The North American Industry Classification System (NAICS), which establishes specific codes for industries in which US companies participate, is used by federal agencies to establish data on the US economy. Companies are also taxed, regulated, and contracted with the federal government based on these codes. The NAICS code for beekeeping is 112910, which is also known as apiculture. Apiculture falls under the primary category of “Agriculture, Forestry, Fishing, and Hunting”. 2VAC5-20-20 of the “Standards for Classification of Real Estate Devoted to Agricultural Use and to Horticultural Use Under the Virginia Land Use Assessment Law” includes apiary operations as qualifying activities.

The National Agricultural Statistics Service (NASS) falls under the USDA and collects agricultural data from farmers to produce annual reports to monitor the health of American agriculture. The most recent agricultural census report is from 2022. The report shows the United States apicultural industry to have 73,496 farms with 3.8 million hives, with a combined $7.5 million in honey revenue and pollination contracts. Compare that with the US sheep industry: 88,852 farms with 5.1 million sheep and an economic value of $7.0 million. Economically equivalent industries with near equivalent professional members should be given equivalent consideration under this code. Federal and state agencies agree the bees and sheep are both livestock, and the economic data supports the validity of each industry as near equivalent.

The most obvious food production associated with beekeeping is honey. According to market.us the global honey market is a $10 billion industry that is growing rapidly. It is expected to reach $15 billion in the next 10 years. In the United States, the per capita consumption of honey has nearly doubled since 2000 as people look for healthier alternatives to processed foods. Unfortunately, due to economic pressures and weather, honey production has decreased in the United States since the 1990’s. Imports of honey from other countries, however, has more than doubled since surpassing domestic production near 2005. To me, this signifies an opportunity for American agriculture to fill a domestic demand with domestic product. This should be encouraged legislatively. Virginia consistently ranks in the bottom 10% of honey producing states while states with similar environments make the top 50% such as Tennessee, North Carolina, Pennsylvania, and Ohio. However, when I compare the USDA’s published price received for honey, I see that in 2023, Virginian beekeepers received $8.58 per pound compared to $4.96 in Pennsylvania, and $6.00 in Tennessee. What is see is a growing domestic demand, room for improvement within the Commonwealth, and a premium for Virginia-grown products. It has become obvious that partnering sheep grazing with the solar industry creates savings for solar, environmental benefits, and economic opportunity to the sheep industry. When I look at beekeeping data, I see the equivalent opportunity. There is not only economic opportunity in honey. That honey can be transformed into a value-added product like mead, or honey wine. Mead, the oldest intentionally made alcoholic beverage, is catapulting back into acclaim. As a rapidly growing sector, the option to make mead or work with meaderies is an important opportunity for beekeepers. Additionally, farm meaderies contribute to the Commonwealth’s agritourism sector.

Honey aside, bees provide a critical ecosystem service to the 3-5 miles surrounding their placement. Honey bees are the top pollinators of the food crops we find in the grocery store and pollinators are responsible for the reproduction of 90% of flowering plants and about 35% of all the food we eat. Without pollinators, we lose 1/3 of the diversity of our diet and that sector of agriculture goes to $0. In the United States, almonds, blueberries, melons, apples, pumpkins, oranges, nuts, and other fruits and vegetables are pollinated by honey bees. It is estimated that pollinators add a staggering $18 billion dollars in revenue to the US agricultural economy through the services they provide. There is a free tool available online called Beescape which estimates the economic contribution of pollinators in the 3 mile radius surrounding a chosen point. When the address for VA DEQ headquarters is entered, there is an estimated $6,000 pollinator economic impact even though the area is considered 84% developed. When you switch the search location to a well-known solar site, Spotsylvania Solar, that climbs to $30,000-$57,000 depending on where you stick the bees. The 3-mile radius encloses most of the site as well as thousands of acres of surrounding farmland, forest land, and residences. This economic contribution is difficult to see but cannot be ignored. There is economic value to the neighboring homes and farms when beehives are placed.

Furthermore, there is pressure from counties, the solar industry, and neighbors of solar projects for sites to incorporate pollinator plantings. This is common sense and, in my opinion, should be required at every site in the Commonwealth. When solar companies install pollinator habitat and accompany that with beehives, there will be increased seed set in the pollinator plants and increased flower yields. This decreases the cost for the solar operator to replant annuals and failed perennials and provides much needed forage for native pollinators and honey bees alike. Pollinators directly contribute to enriching ecosystem biodiversity and increase in forage for wildlife, including T&E wildlife. Honey bees are generalists, and unlike many of our native specialist pollinators, will visit almost any flower with nectar or pollen which includes the fruits and vegetables in Virginian’s gardens and farms.

I have often heard the argument that bees are not native here and therefore shouldn’t have a place in our solar sites. Cattle as we know them are not native here, only bison. Sheep as we know them aren’t native here, only the long horned in the mountains. Pigs are not native here. Chickens are not native here. Goats as we know them are not native here, only the rock goats of the Northwest. If we are encouraging solar companies to incorporate livestock into their sites, we cannot forget the honey bee under any circumstance.

Another argument against honey bees is their competition with native pollinators. This is an emerging body of science which needs further study and development. There are examples of high-density beekeeping operations that displace native pollinators in certain conditions, but other studies which show neutral effects. Many studies show convincing evidence that there are appropriate stocking rates which optimize honey production per hive and minimize or negate impact on native pollinator populations. There is also good evidence that increasing floral density decreases negative impacts on native pollinators. When I average the papers I have read, an ecologically responsible stocking rate of managed bees is 25 hives for a 3-mile radius point/site. This is in close agreement with the Xerces society’s more conservative published recommendation of having apiaries with no more than 20 hives, ideally separated from other apiaries by 4 miles. Combining science and recommendations, I’d recommend a maximum of 20 hives at a small site to optimize beekeeper success and minimize any potential detrimental impact on native pollinator populations. It would be good practice to determine if any apiaries larger than 20 hives exist within a 4-mile radius of the site to cautiously protect native pollinators as we learn more about this interaction.

I have also heard that if beekeeping is included then solar companies will shove a few hives on a site just to qualify. I fully advocate that just as qualified engineers are required to certify the size of the project in MW, professional beekeepers (existing bona fide beekeeping businesses) be responsible for maintenance of the hives. Additionally, I advocate that any apiary installation must be in combination with pollinator smart habitat installations to qualify. Planting pollinator habitat ensures there is enough food for the honey bees and the native pollinators. 

I propose either adding a subsection in section 9VAC15-60-60 E.4 to include beekeeping as a management alternative in combination with pollinator smart plantings OR to change the definition of “Establishment and maintenance of pollinator smart habitat/vegetation" to:

“Establishment and maintenance of pollinator smart habitat/vegetation" means establishment and maintenance of pollinator smart vegetation in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. This shall meet short-term and long-term erosion and sediment control (ESC) standards and may require change of cover type or species mix following initial ESC stabilization. Pollinator habitat shall cover at least 35% of the disturbed area claimed for this credit or 30% if an apiary is managed on the site at appropriate stocking rates of no more than 20 colonies in a 4-mile radius from the apiary location, by a professional beekeeper.

Or something like that wording. By including the beekeeper in the definition and increasing the pollinator habitat requirement, several good things are accomplished. First, we recognize Virginia beekeepers as bona fide farmers with the same respect and consideration given to sheep farmers and hay cutters in this proposed amendment. Secondly, we encourage a connection between Virginia beekeepers and the Virginia solar industry. Third, we provide economic opportunities to Virginia beekeepers which contributes to Virginia’s agricultural landscape at large. Fourth, by increasing the percentage of pollinator habitat without bees, but maintaining the percentage deemed appropriate to offset adverse impacts and qualify for reduced mitigation, we either have the same impact intended in the original language, or an even greater impact on pollinator habitat land cover without them. This is a win-win-win.

3. Under the section “analysis of beneficial and adverse effects on natural and historic resources, section C.2 A completed DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, some clarification would be good. Section C references “desktop” analysis. Does this mean the scorecard should grade the proposed vegetation management plan? Or should the scorecard grade the pre-construction condition of the site? In my opinion, both would be good so that any stark change in impact is made clear. Solar has the potential to have enormous benefits to pollinators and endangered birds, especially in comparison to current crop and forestry land uses. Not only would this provide critical data for DEQ on land use changes and their impact on pollinators, but it would strengthen the vegetation monitoring industry and the pollinator smart program.
4. It is well known at this point that incorporating agriculture and pollinator habitat into solar sites is beneficial to the local economy, the local ecosystem, the solar industry, and governing agencies. I present concern that a 25% reduction in the mitigation requirement due to agricultural /pollinator activities on the site is not enough incentive and is potentially disproportionate to the ripple effect of “good” that comes from agrivoltaics. I recommend increasing this percentage to 30-33% to better incentivize agrivoltaics activities in Virginia so that we can serve as a model to other states for how to encourage, incentivize, and support the co-existence of agriculture and energy production. What is the average economic and environmental value of a 25% reduction in mitigation compared with the estimated economic and environmental value of soil preservation and establishment of pollinator habitat plus beekeeping and sheep grazing? How do we make it so that the in-lieu fee is not the cheapest way out?

I am happy to provide references cited upon request. 

Plant more flowers, keep more bees. Do it in solar. 

I am writing to support the Virginia Department of Environmental Quality’s (DEQ) draft regulations requiring utility-scale solar developers to mitigate impacts on Virginia’s prime agricultural and forest lands.

We need to strongly support implementation of renewable energy in Virginia to convert to a carbon-neutral energy system.  Climate change, with its associated extreme weather events, is perhaps the greatest threat to Virginia's ecosystem, its wildlife, and the people of Virginia. 

As we promote this transition, we must be thoughtful on the siting of solar facilities that to reduce the impact on forests and prime agricultural lands. Protection of our important ecological forest cores is a very high priority, as these forests are also critical in sequestering carbon and reducing the impact of climate change.   Impact to forest land must be strongly mitigated, if not avoided.  On farm land, protection of soils and providing for ancillary agricultural activities such as pollinator ground covers, beekeeping, grazing, and/or growing hay are important mitigation steps.  

We need solar.  The draft regulations create a mitigation framework that provides solar developers with important flexibility to undertake mitigation in a way that will minimize the burden through thoughtful site design and the ability for a developer to undertake mitigation themselves or pay into a state run program to implement the mitigation. Please finalize these regulations to achieve the goals of supporting renewable energy transition and preserving Virginia’s critical natural resources.

Thank you for your consideration.

As an organization that currently holds easements on projects that mitigate impacts to streams and wetlands, we support this approach to offsetting impacts of solar projects. 

We support the idea of offsetting impacts in mitigation districts with the following recommendations:

1. Determining ILF fees based on the Tax Department's information regarding the value of conservation easements throughout the state is a sound approach; however, these fees should be based on specific mitigation districts rather than a statewide average. There is a significant difference in the cost of protecting a property in Loudoun County compared to Halifax County. This should be taken into account.
2. "An Applicant may propose innovative alternatives to the required mitigation." These alternatives should be made public and ultimately incorporated into the regulations. 
3. "A conservation easement shall encumber land in the same mitigation district as the area disturbed. In the event the applicant cannot locate land in the same mitigation district, the department may allow the land to be in an adjacent mitigation district." How will this be determined? This seems awfully broad. There should be specific triggers that determine whether an applicant can mitigate impacts in a neighboring district. 
4. "Easements for forest mitigation shall be consistent with the Easement Term Guidelines adopted by DOF. Easements for mitigation of prime agricultural soils shall be generally consistent with the Virginia Outdoors Foundation (VOF) easement template for Working Farm/Intensive Agriculture. Easements for mitigation of C1 or C2 forest cores shall be consistent with the VOF easement template for protection of natural areas." These templates are a good place to start, and that appears to be the intent. The term "generally consistent" should be used across the board. A list of necessary restrictions and requirements would also be helpful in order to create consistency between projects. 

For your consideration, 

I am in favor of amending Chapter 688 of the 2022 Acts of Assembly. 

The inclusion of agricultural and forested lands for consideration of solar projects opens up more access to clean energy in Virginia. Reviewing these lands for any adverse effects caused by this project is also important as it ensures a more limited impact. The requirement of a mitigation program for adverse effects is fair. The allotment of a 45-day comment period will also permit citizens in the area a chance to share any concern with the project. 

Thank you, 

Morgan Ralph

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?

I think this is a fantastic step forward to the ethical implementation of more renewable energy in Virginia. I think the requirement of analysis of the beneficial and adverse impacts of a proposed solar project helps avoid a major argument against such endeavors.

Thank you,

Andrew Durfee

Thank you for the opportunity to provide comments on the proposed revisions to 9 VAC 15-60 to comport within the requirements of Chapter 688 of the 2022 Virginia General Assembly. 

The Virginia Cattlemen’s Association (VCA) represents thousands of cattle producers and landowners constituting one of the largest private agricultural land uses —across the Commonwealth.  

VCA supported HB 206 in 2022 as it is a tool to help protect vital farm and forestland resources for future generations.   

Chapter 688 defines and adds prime agricultural soils and forest lands to the requirement with an analysis of beneficial and adverse impacts to natural resources. 

Virginia’s farm and forestlands are extremely limited resources. 

Virginia agriculture is more than just the cultivation of crops and raising of livestock; it is the backbone of our economy and a vital component of human survival. It plays a crucial role in ensuring food security, providing livelihoods, and promoting sustainable development.

Over the last 5 years we lost over 500,000 acres and 5000 farms in Virginia.  This rapid rate of conversion is not sustainable. 

We must mitigate the losses and significant damage in order to plan for renewable food supplies for future generations.  

This legislation can assist in “balancing” demands and requirements for regional food and fiber production with needs for regional clean energy. 

We must continue to prioritize additional land uses other than agricultural/forestal for utility solar installation.  This includes large energy user projects, such as data centers, industrial facilities, public buildings, public schools, brownfields, landfills,  and parking lots.

Virginia needs to “balance” the artificial financial incentives created by state and federal government—with financial incentives for farm and forestland protection.  

We support allowing additional options and recommend that in lieu mitigation dollars collected be deposited into the Virginia Department of Forestry’s Office (VDF) of Working Lands. 

Funds deposited at VDF will make a major impact in keeping “working lands” and do the most for the public good to protect operating farm and forest resources long term.  

However it is quite important that all future mitigation using matching easements allow commercial agricultural and silvicultural operations to continue and not impose restrictions which would negatively affect agriculture and forestry enterprises.  

We encourage the Department to continue to focus on protecting “prime” forestland and agricultural land as defined and using the references to forest preservation programs as cited.

We also support and recommend using the State Land Evaluation Advisory Council (SLEAC) for all value calculations. SLEAC is the accepted statewide authority on value for farmland and forestland, and can effectively and efficiently determine these calculations. 

We support Dr. Lee Daniels research and recommendations from Virginia Tech regarding compaction damage and steps to mitigate.  Dr. Daniels is a renowned soil researcher whose work has defined evaluating, repairing, and improving disturbed and compacted soils involving harsh environment sites such as utility solar facilities and strip mines. 

9VAC15-60-60. Mitigation Plan. Section E, Part 3, Table 1:

For Option 2; We support changing the Mitigation Actions Required language to the following:

“Areas with changes in grade due to cut and fill with removal and return of topsoil, decompaction of topsoil to six inches following installation, maintenance of > 75% living vegetative cover for project lifetime, and decompaction to > 24" and surface soil amendment after decommissioning.”

Rationale: The current language specifies decompaction of the subsoil (in addition to topsoil) following installation which is not feasible in many site settings following panel installation. As long as the returned topsoil is decompacted to six inches, a certain amount of improvement in the quality of the subsoil is to be expected over the operational (20 to 30 years) period due to rooting and other processes, assuming 75% living vegetation is maintained. However, the deep ripping/decompaction to > 24 inches will be essential for site decommissioning to ensure reasonable levels of soil productivity for agriculture or forestry.  

From our work with agricultural and forestal stakeholders we believe the proposed regulations adequately reflect the positions of the technical advisory committees.  

Please finalize the HB 206 regulations as intended to insure “green energy projects” do not have unintended consequences and destroy vital agriculture and natural resources in Virginia. 

Protecting farms, our food, our forests, and our drinking water  must be a priority for all Virginia citizens. 

Thank you for the opportunity to provide comments and to participate in the processes effecting this important topic. 

Sincerely, 

James E. Riddell

Virginia Cattlemen’s Association

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

Thank you for the opportunity to provide comments to the proposed text. I am supportive of HB206 and its intent to preserve and protect the Commonwealths Prime Farmland Soils and Forests.

Comment #1

• Please consider adding a cover crop requirement for croplands to the definition of "active cropping, including haylands." The current definition appears to only require the production and harvest of one crop. This could lead to soil with no living roots for half of the year. 

Comment #2

• Please consider revising the decreased area requirement for offsite mitigation by reducing the onsite mitigation from 25% to 10% in active crop areas where cover crops are not utilized and any other conservation tillage practice other than no-till is utilized. Farmers/producers who utilize cover crops, retain crop residue on fields, and utilize no-till practices should be incentivized and rewarded through the partnership with the solar developer to assist with not only preserving prime soils, but improving them.

Comment #3

• Suggest adding baseline requirements for all crop fields that are to be utilized for onsite mitigation to have a Revised Universal Soil Loss Equation version 2 (RUSLE2) analysis performed on each field to ensure that the fields are at a minimum being managed to meet "T," the acceptable soil loss for each soil series. All fields must meet "T" with a Soil Conservation Plan, if needed.

Comment #4

• I agree with Dr. Daniels' comment on the need for additional decompaction of the soil following decommissioning.

Comment #5

• For Table 1, please consider providing methodologies or the need to use a licensed professional soil scientist to quantify the amount of topsoil that will be removed from the site along with minimum standards to include depths, soil texture, organic matter content and other parameters for the soil that will be returned or imported to the site to utilize Option 2. Preservation of Topsoil as an onsite mitigation measure.

Comment #6

• Please clarify whether additional environmental banking credits to include, but not limited to compensatory mitigation credits, nutrient credits, and carbon credits can be utilized in the same area as the offsite mitigation for solar impacts.

Comment #7

• The baseline requirement for offsite mitigation to conserve prime farmland soils is through the protection of those acres with a 1:1 ratio via a perpetual easement. The proposed onsite practices are seasonally and at best annually managed. How does the Department propose to monitor, verify, and enforce that these practices are being implemented/maintained on a seasonal and annual basis? Since onsite areas are being used to offset impacts of a perpetual nature, then should the onsite mitigation areas be protected via an easement or other land protection instrument that matches the life of the solar facility (at a minimum), if not perpetual? These management areas can only then be released by the decommissioning of the solar facility and adherence to a site reclamation plan. Or the solar developer/landowner could choose to purchase an offsite easement of the remaining acres needed for compliance with the original amount.
• The use of agricultural practices onsite to decrease the need for offsite mitigation must require verification, validation, and record-keeping throughout the life of the project. Does the Department have adequate resources to review, inspect, and when needed, enforce the provisions of this statute?
• What does the Department propose to do in situations where the onsite mitigation is determined to be insufficient and is not meeting the intent of the onsite mitigation requirement?

Introduction.

My name is Chip Dicks and I am a partner with Gentry Locke Attorneys.  My comments are contained in this document. 

For more than a decade, I have been privileged to represent solar companies and industry associations in public policy discussions and legislation in the Virginia General Assembly.  In that capacity, I represented the solar industry in opposing HB 206 in the 2022 General Assembly.  Upon the passage of HB 206, I was appointed as a member of the stakeholder groups organized through DEQ to provide input over two years on behalf of solar clients and industry organizations on the proposed implementing regulations for which the public comment period ends on December 6, 2024. 

I compliment DEQ on its efforts to facilitate the discussions of the diverse stakeholders in the HB 206 regulatory processes. The diverse stakeholders did not agree on HB 206 in the 2022 General Assembly in first place and it should not be surprising either that we were not able to find consensus in the stakeholder regulatory processes over the two-year period.

In the big picture, the General Assembly has passed legislation with conflicting policy goals and objectives.  HB 206, had as one of its stated objectives, to attempt to bring some balance of these competing policies. The VECA directed Virginia make changes in its energy policies that puts tension on state policies of protecting farmland and forest assets. 

The passage of HB 206 clearly does not resolve this tension.  There will continue to be growth and development as the Commonwealth grows and embraces economic development to expand of our overall economy and tax bases, and there will continue to be resistance from rural communities to protect our rural ways of life in Virginia. The General Assembly will need to provide guidance in the future to help flesh out future public policies and provide a more specific statutory framework to resolve these tensions.  The regulatory processes can only implement the statutory frameworks passed by the General Assembly and enacted into law.

I make these comments as an interested party, not on behalf of any individual company or industry association. I, however, associate my comments with the thoughtful comments filed on behalf of Mid-Atlantic Renewable Energy Coalition ("MAREC") and the American Clean Power Association ("ACP") as well as any others filed on behalf of solar companies filed expressing concerns about the impacts of HB 206 and its implementing regulations. 

Background.

It is important to understand what actions the General Assembly had already taken prior to the 2022 General Assembly’s consideration of HB 206, and what significant changes had been made by the General Assembly to the energy economy in Virginia. 

The Virginia Clean Economy Act ("VCEA") passed by the 2020 General Assembly put required goals in Virginia Code to transition from monopoly generation of electricity mostly by fossil fuels to private sector participation in generation of renewable energy, mostly by solar but also by wind. The VCEA put specific targeted business and policy goals in statute to establish a schedule for transition from fossil fuels to renewables.  This schedule defined the business markets for solar marketplace and enabled solar developers to raise money, commit to debt and equity, and to help build a new renewable energy economy. 

In addition, the solar industry recognized the need for partnership between solar developers and localities, particularly in the rural areas of Virginia where many utility-scale solar ("USS") projects.  The solar industry proposed legislation that would require solar to be an economic development asset in rural counties.  To do that, we needed to provide a true economic development value proposition for rural counties, based upon the needs tailored to each locality.  

So, the solar industry created a new land use process that would not have the limitations and stigmas of the existing conditional use processes in statutes and case law. That new land use process commonly referred to as the "siting agreement" process, required solar developers to meet with county leadership and discuss their capital and operating needs for the locality in which a particular solar project would be located.

To that end, the solar industry examined the use case for broadband and how solar could play an important role providing the long-term resources over a 35/40-year timeframe. In general terms, a rural broadband project has a $20M price-tag, approximately $12M from the Feds, $4M from the state through the "VATTI" Grant process in Virginia, and $4M from the rural county.  The solar industry’s goal was to create funding for the $4M required from each county for a VATTI grant match from just one 150 MW solar project.  The economics of one 150 MW solar project would generate well over $4 M in unrestricted funding to the county, and that money could be paid over 3 years, under a siting agreement, to align with the requirements for payments under Virginia’s VATTI grant process.  With the siting agreement legislative structure, the solar industry knew we could provide the "last mile" funding to complete broadband deployment in rural counties, thereby changing the economic development base in those localities. In short, this creates economic development money that does not cost the county any money for infrastructure, unlike the requirements of most other economic development projects. 

Through the siting agreement legislative structure, the solar industry also authorized counties to issue revenue bonds, without a voter referendum, a grant of legislative authority currently reserved to Cities.  To make it easier for due diligence for the issuance of revenue bonds, the solar industry also proposed legislation for a "revenue share" instead of the caveats and reserves required for monetizing funds from "M&T" taxes, which have fluctuations with depreciation, capital obsolesce and installation of new solar equipment.  The revenues provided through these new revenue sources over a 35/40-year period provide a meaningful and reliable revenue stream to fund critical capital and operational needs of rural Virginia without the governing bodies having to raise taxes on its citizens.

From the solar industry perspective, we thought the solar industry had a defined market for USS and investors were committed to build in Virginia to serve this newly defined renewable energy economy. The solar industry had proposed and help create the legislative framework to help implement the VCEA passed by the 2020 General Assembly and enacted into law.  And, we provided new revenue sources to the localities that approved USS projects to provide meaningful assistance to our rural economies in Virginia.

So, in the 2022 General Assembly, along comes HB 206, along with other pieces of legislation to push back on solar and renewable deployment.  That Session, the proposed legislation to repeal the VCEA and directly reverse Virginia’s commitment to a renewable energy economy, as set in the VCEA, were killed by the General Assembly in committees and subcommittees through the legislative process. All anti-VCEA legislation that Session died except for HB 206. 

The solar industry opposed the reversal of the VCEA and other legislation that would have been "death by a thousand cuts" with respect to deployment of solar energy infrastructure needed to meet the transition from fossil fuels to renewable energy sources.  In multiple discussions during 2022 Session with Delegate Webert and supporters of HB 206, the solar industry understood that primary goals included balancing the interests of USS deployment with those of the farming community and forestry.  But, the solar industry was then, and still is, concerned about the real world effects of HB 206 on the vitality of building USS projects in Virginia.

Grandfather Clause.

Because so many solar developments had already committed funds, acquired land, spent time putting together projects, in other words, relied upon the rules set by the 2020 General Assembly for implementation of the VCEA, as Virginia often does, a grandfather clause was proposed by the solar industry.  We negotiated a grandfather clause into the enactment clauses to HB 206.  From a legislative drafting standpoint, the body of the legislation goes into the Code of Virginia but for the types of language that relates to timing or implementation, often goes into enactment clauses, which have the force of law but only go into the Acts of the Assembly for each legislative session. 

The grandfather clause in terms of timing and implementation on HB 206 says effectively: If an applicant for a permit by rule ("PBR") makes a request for service to PJM and receives back a document called an "Attachment N", which is approved prior to 12/31/2024, that solar project is grandfathered and does not need to comply with the state mandated mitigation requirements otherwise required under HB 206.

Key Concerns About the HB 206 Regs. 

The legislative language of HB 206 was not clear and the regulatory stakeholder groups organized through DEQ could not figure out the real-world impact of HB 206 in two years and thousands of hours of work effort. 

The expectation for the HB 206 regulations was that solar developers would be able to do a "desk-top analysis" so developers could easily determine whether a particular solar project pencils or not, without having to spend hundreds of thousands or even millions of dollars of internal company and third-party costs.  Unfortunately, there is an absence of such desk-top resources to aid in that decision-making processes for a solar developer. See the comments from MAREC and ACP on this subject.

The HB 206 regulations will frustrate the compliance with, and required target goals of, the VCEA. Virginia’s economy will suffer losses as a result. 

The HB 206 regulations are state mandated mitigation, on top of the mitigation conditions imposed in land use permitting and those agreed to by the siting agreement, which is required by state zoning law. 

In the HB 206 regulatory stakeholder discussions, members of the environmental and preservation communities stated there were 14 "functions and values" necessary to identified and evaluated to determine the amount of state mandated mitigation for each solar project.  The stakeholder groups were not able to find consensus on the functions and values discussion.

Nobody knows how much it is going to cost to make these determinations or how much the state mandated mitigation is actually going to cost.  HB 206 certainly does not provide any statutory guidance.  In short, the HB 206 regulations do not enable a solar developer to reasonably determine the costs of, or value proposition for, the mandated state mitigation and whether a solar project will be feasible or not.

There is no evidence that solar development causes a "significant adverse impact" on prime agricultural soils or forest assets more than any other kind of land development.  In fact, if studied, the solar industry conserves a good portion of land included in a solar project in its natural state for 35/40 years, unlike other types of land development which disturbs a large portion the development project and changes the uses of land.  Yet, there are no other types of commercial, industrial or residential development subject to any state mandated mitigation whatsoever.  See the comments from MAREC and ACP on this discussion. 

There are agricultural and other business interests that want to frustrate solar development and certainly, a nebulously worded piece of legislation like HB 206 drives a "death by a thousand cuts" impact on utility scale solar development. 

HB 206 and its regulations force a solar developer to either: (i) purchase a perpetual easement through a private organization or governmental entity (even though the life of a solar project is contracted to be only 35/40 years so the state mandated mitigation burden is not aligned with the timing on the solar project); or (ii) argue, debate and negotiate with DEQ the FMV of a payment in lieu. See the comments from MAREC and ACP on this discussion. 

On the payment in lieu calculation, the HB 206 regulations estimate the value proposition for cost of such payment to be: (i) the purchase of any land purchase; (ii) the FMV of land as assessed by the real estate assessing authority for that locality after zoning is approved for the change in use from agricultural or solar use; or (iii) $1,000 per acre of land for each acre of land being mitigated after real estate assessment after change of use.  Just to put it out on the table, often the agricultural land is in "land use taxation" at a reduced tax rate or assessment of $200 per acre and the locality land use assessment after change of use to solar is between $10,000 to $15,000 per acre.  That is the real-world impact of the state mandated mitigation.  See the comments on MAREC and ACP on this discussion.  See the comments from MAREC and ACP which do a nice job of describing real world financial impacts of why these arbitrary ratios are not feasible and not an appropriate criteria for this state mandated mitigation.  

By state law, every piece of legislation and every proposed regulation is required to have a fiscal impact analysis and a resulting statement.  Please read through the fiscal impact analyses by the Virginia Department of Planning and Budget and the Virginia Office of Regulatory Management.  The inability for a solar developer to perform a "desk-top" analysis to determine how much all of this stuff set into motion by HB 206, and implemented by the HB 206 regulations, is staggering and daunting for the solar industry.  Also, see the comments from MAREC and ACP on this discussion. 

One thing that gets lost in the HB 206 discussion is the impacts of all of these competing policies on taxpayers, and in the energy space, on ratepayers.  The state mandated mitigation in HB 206 and its regulations is certainly going to increase the cost of electricity for the ratepayers.  We just don’t know how much!

While the fiscal analyses done by state agencies touch on this significant impact on ratepayers, we see will see those tensions play out at the State Corporation Commission.  The HB 206 stakeholder groups did not have the time or expertise to realistically contemplate this despite a directive in the enactment clauses of HB 206 to do so.

I recommend the draft HB 206 regulations need to be reviewed carefully for compliance with the HB 206 statutory requirements of the enactment clauses.  In that regard, I have the following questions:

Question #1. Since the draft HB 206 regulations do not address the increased costs of HB 206 to ratepayers, are the regulations in compliance with the statutory requirements of the enactment clauses in HB 206? 

Question #2. Do the draft HB 206 regulations establish an adequate criteria to determine "if" there is a significant adverse impact on prime ag soils or forest lands, in compliance with the statutory requirements of the enactment clauses in HB 206.  What generally accepted scientific authorities form the bases for that criteria?

Question #3. Do the draft HB 206 regulations establish an adequate criteria to limit the "disturbance areas" of a USS solar project when only a small acreage of the entire project are actually disturbed, in compliance with the statutory requirements of the enactment clauses in HB 206?

Question #4. Do the draft HB 206 regulations establish an adequate criteria to establish a state mandated mitigation through a conservation easement or the calculation of an in lieu cash payment, in compliance with the statutory requirements of the enactment clauses? Is there any basis to require conservation easements at all under the statutory requirements of the enactment clauses in HB 206?

Question #5. Do the draft HB 206 regulations establish an adequate criteria to establish a scheme of "mitigation districts" based upon watersheds, in compliance with the statutory requirements of the enactment clauses in HB 206? What generally accepted scientific authorities form the bases for that criteria?

Question #6.  Do the draft HB 206 regulations establish an adequate criteria to establish a reasonable "lookback period" for land designated as prime ag soils but not used for agricultural purposes, or forest lands cut for timber purposes, which would exempt such lands from the state mandated mitigation requirements of HB 206?

Question #7.  Do the draft HB 206 regulations take into account, using the USDA data, how much of the documented prime ag soil lands in Virginia were lost to farming use because of conversion into USS projects? What was the date of the most recent USDA report?

Question #7.  Do the draft HB 206 regulations take into account, using the US Forest Service data, how much of the documented C-1 and C-2 forest lands in Virginia were lost to forest use because of conversion into USS projects? What was the date of the most recent Forest Service report?

Question #8. Do the draft HB 206 regulations establish an adequate criteria for best construction and land management practices to "mitigate on-site"? And, are the mitigation percentages for such practices appropriately set? What generally accepted scientific authorities form the bases for that criteria?

Question # 9.  Do the draft HB 206 regulations establish an adequate criteria for evaluating the feasibility of a solar project if the "desk-top" resources are not available either because such resources are outdated or simply not available?  And, should such USS project be exempt from the state mandated mitigation since such resources are not available?

Question #10.  DEQ clearly complied with all the public notice requirements with respect to the HB 206 regulations.  But, I don’t believe that Department of Forestry, Department of Conservation and Recreation, Department of Historic Resources, Department of Wildlife, or other state agencies separately complied with required public notice requirements. As such, the question is, that to the extent any other state agency adopted or amended any guidance documents, regulations or other practices, policies and procedures, are such changes not valid because public notice requirements were not met?

There are other environmental and preservation mitigation programs in the US and abroad, which need to be examined.

Respectfully submitted

Chip Dicks

Gentry Locke Attorneys

7650 Hill Drive

Richmond, Virginia 23225

chipdicks@gentrylocke.com

chip@chipdicks.com

(804-225-5507) (Direct Dial)

The language in this bill places more emphasis on protecting forests than farmland. No protection is provided in the language for "farmland of statewide importance" or "farmland of local importance". This is a tragedy as we need to protect our farmland to feed our citizens and protect Virginia’s agricultural economy.

Additionally, we need to protect our farm and forest lands without losing property rights for future generations. Therefore, a perpetual conservation easement is too burdensome to future landowners.

Please consider the following:

1. Regarding VAC15-60-50 – D: “A project shall be deemed to have a significant adverse impact if it would disturb more than 10 acres of prime agricultural soils.”
   1. Both prime agricultural and agricultural soils of farmlands of statewide importance should be included in this disturbance limits and throughout the code.
   2. Significant adverse impact to both types of agricultural soils in mountainous and foot hill regions should be set to 5 acres as flat lands are a premium in some of these counties. Farmers in these regions grow crops on all flat and moderately slope areas that they can transverse.
2. Regarding the definition of conservation easement:
   1. The conservation easement should not be perpetual as this robs future generations of their property rights to use their property as they see fit.
   2. The life of the solar project is around 20-30 years, the conservation easement should match the length of the project and then the project should be required to turn the project site back to its original land use and decompact the soils.
3. Regarding VAC15-60-30 and public review and public notice:
   1. The public review requirement is not sufficient. DEQ is given 45 days to review the project. The public should be given 60 days.
   2. The public notification requirement is not sufficient. Letters should be sent to all landowners within 5 miles of the project as public notifications in a dying media are not an effective means of communication.
   3. A public meeting should be required to inform the public of the project and discuss the public’s concerns.
4. Regarding VAC15-60-60:  Mitigation measures for forest lands with the conservation easement are more stringent than for farmland with the easement. The forest mitigation measures require either a seven to one or a two to one mitigation ratio while the farmland requirements require a one-to-one ratio with a carve out to reduce the mitigation ratios with a riparian forest buffer.
   1. Prime farmland should be protected with a mitigation ratio of seven agricultural acres to one project acre (like the C1 forest land).
   2. Farmland of statewide importance should be protected with a mitigation ratio of four agricultural acres to one project acre.
   3. All mitigation should occur in the same mitigation district.
   4. The mitigation for farmland should not be reduced by providing a riparian forest buffer within the easement. The mitigation should protect farmland, not reduce it by substituting it with forest. This reduction carveout should be eliminated.
5. Due to the importance of farmlands, the projects should not be grandfathered from the mitigation requirements.

American Farmland Trust (AFT) would like to thank the Virginia Department of Environmental Quality (DEQ) for their work on the proposed regulations to implement Virginia HB206, and for inviting this written comment in response.

Since the 1980s, AFT has been working “from kitchen table to Congress” in Virginia and nationally to save the land that sustains us by protecting farmland, helping farmers adopt environmentally sound practices, and keeping farmers on the land. AFT recently embarked on Regenerate Virginia, an ambitious action plan and forward-looking vision for agriculture. One of the strategies included is to advance Smart Solar to support farmers and rural communities.  

Solar energy development is taking place in the context of a continuing national trend of farmland loss. In AFT’s 2019 Farms Under Threat the State of the States report, AFT found that between 2001 and 2016, 11 million acres nationally were lost or threatened by high- and low-density residential development. In Virginia, 340,000 acres of farmland were developed in that period. If recent trends continue, nearly 600,000 acres of Virginia’s farmland will be paved over, fragmented, or converted to uses that jeopardize agriculture—that's 7%. Virginia can reduce conversion, protect farmland, and safeguard the future of agriculture and the environment by choosing smart growth, including Smart Solar.

Solar is a cost-competitive form of energy that is being developed to decarbonize the electric grid—and much of it is being sited on farmland. According to a 2021 DOE study, solar energy may occupy 10.4 million acres by 2050 with 90% expected in rural communities. Further modeling done by AFT, through its Farms Under Threat: 2040 analysis, projects that without policy intervention 83% of new solar development nationally will take place on agricultural land, with almost half on our most productive land for producing food and other crops.

Virginia is experiencing significant growth in solar development. According to a LandGate analysis, in August 2023 solar arrays under operation or under development would occupy 10,000-20,000 acres and the Nature Conservancy anticipated 161,000 acres of land would be needed to meet Virginia’s 2020 Clean Economy Act (VCEA) solar target of 16GW. Most of this new solar development will be concentrated in rural communities with favorable siting characteristics—flat, open, and sunny land with grid interconnection near energy demand—some of which already face high rates of farmland conversion. And the majority will be utility-scale projects that require hundreds or even thousands of acres.

This solar growth can provide important financial benefits in the form of long-term leases for landowners and tax revenue for rural municipalities. But it is also raising concerns about the displacement of farmer-renters outcompeted by solar developers and the impacts to the local farm economy from large-scale conversion of productive farmland in host communities for 25-40 years or more. Farms are anchor businesses in rural communities, not only providing food, fuel, and fiber but also supporting an ecosystem of businesses such as feed and seed dealers, equipment purveyors, and veterinarians. Supporting farm viability and keeping land in production to continue this local economic activity is critical to enhancing rural vitality as solar development expands in the Commonwealth.

Earlier this year, AFT surveyed 240 Virginia farmers representing all major production systems and scales in 78 counties to learn about their attitudes towards solar development. These results will be made public in 2025. While 47% of respondents shared concerns that climate change and extreme weather would continue to have a negative impact on their farming operation, Virginia farmers also responded with worries about having enough land to grow food and remain commercially viable. And 64% of farmers who responded to AFT’s survey thought solar should never be sited on the most productive farmland.

All of these concerns are slowing or halting proposed solar projects across the country, and are threatening the timely achievement of Virginia’s climate goals.  AFT has developed four Smart Solar Principles that are designed to help ensure that solar development strengthens farm viability and rural vitality to get projects built. These principles are:

• Prioritize siting on the built environment and contaminated (e.g., landfills, brownfields) and marginal land;
• Safeguard the ability to use land put into solar for farming by protecting soil health, especially during high disturbance times of construction and decommissioning;
• Expand development of agrivoltaics projects which integrate agricultural production into solar arrays; and
• Promote farm viability and equity by ensuring farmer engagement and shared benefits.

In 2022, Virginia passed HB206 into law to minimize conversion of prime farmland and mitigate impacts to the local farm economy as the state advances towards its clean energy goals. This and all the work that has followed represent essential steps in advancing Smarter Solar projects in Virginia. As proposed, the regulations address some of these principles. With a few adjustments, they could help to achieve all of them. Below are AFT’s recommendations for how to shape the proposed regulations to advance a Smart Solar buildout in Virginia:

• Retain Robust Proposed Mitigation Fees. Keep the robust proposed mitigation fee amounts, and regularly review and revise the fees to ensure this program is enabling Virginia to meet its climate goals while steering development to locally preferred areas and mitigating impacts to farm economies in host communities.
• Differentiate Fee Reductions for Ecovoltaics and Agrivoltaics. Ecovoltaic (e.g., pollinator habitat) and agrivoltaic (grazing and crop production) projects incur different costs to implement and provide different benefits to the host community. Providing a lower (e.g., 5%) fee reduction for ecovoltaic projects will be important to incentivize this beneficial activity while still collecting enough funding to mitigate impacts in host communities.
• Properly Incentivize Agrivoltaic Projects. Define agrivoltaic projects in the regulations and provide fee reductions that are sensitive to the cost of integrating the agricultural production system into the solar array. Only implement these fee reductions when DEQ has the ability and capacity for continual monitoring and verification throughout the life of the project, with enforcement— including clawbacks—if agricultural production stops.
• Reduce Soil Health Mitigation Ratios. Significantly reduce the proposed fee reductions for soil health activities. Make these activities requirements for receiving a permit, with minimal fee reductions if needed to incentivize them while still collecting enough funding to mitigate impacts.
• Close Loopholes. Remove the language that would eliminate the mitigation fee for “innovative alternatives to the required mitigation… including restor[ing] the characteristics of prime agricultural soils.” This is very difficult to achieve and creates a loophole that would reduce the ability of host communities to mitigate impacts.
• Authorize the Department of Forestry’s Office of Working Lands to Administer Farmland Mitigation Funding in Conjunction with VDACS. Fees collected for farmland mitigation should be implemented by agencies that can invest in agricultural conservation easements and farm viability projects as close as possible to the host community.
• Plan for Contingencies. Direct applicants that choose the easement option to move to the in-lieu fee option should their attempt to secure an easement prove unsuccessful.

Maintain Proposed Mitigation Fees

Solar developers respond to market signals and look to their bottom line when making decisions about where to site projects. New solar developments are concentrated in communities with economically favorable siting characteristics. Designing mitigation programs with fees that send market signals to developers about which lands are preferable for siting will create projects that avoid and minimize impacts to host communities and get projects built. Adequate fees provide another important benefit—should the project need to be sited in the location that is less desirable to the community, the mitigation fees collected can meaningfully offset the impacts. According to the language in HB206, the programs’ aims are to minimize both conversion of high-quality farmland and impacts to the local farm economy. Adjusting the fee structure to achieve both of these goals is critical. 

In the draft regulations, DEQ proposed a per-acre fee floor of $3,000, and an increase to that fee should the difference between the assessed value and the agricultural value be higher. AFT applauds this approach of combining a floor—to provide consistency for developers—with a higher fee sensitive to more expensive land values. AFT encourages DEQ to retain these robust fees. This would fulfill the legislative intent of HB206 by discouraging solar development on prime farmland that Virginia communities and farmers prefer to keep in agricultural production. AFT also recommends regularly revising mitigation fee amounts to ensure they are enabling Virginia to meet its climate goals while steering development to locally preferred areas and mitigating impacts to host communities.

Another important way this mitigation program can result in locally-desirable projects is to provide incentives in the form of fee-reductions.  Any proposed fee reductions must be carefully designed to still achieve, and not undercut, the legislative intent for the mitigation program, including “the impact on the local agricultural or forestry economy when [prime] soils or lands are displaced”. In the draft regulations, the following reductions are proposed:

1. A 25% fee reduction for “managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation,”
2. 90%, 75%, and 50% fee reductions for not changing grade, preserving topsoil, and decompacting surface soils on cut/fill areas respectively, and
3. “Propos[ing] innovative alternatives to the required mitigation,” which “could include restoration of a degraded site to restore the characteristics of prime agricultural soils.”

These fee reductions could undercut the legislative intent of HB206 to mitigate impacts to prime soils and the local agricultural economy. AFT will respond to each in turn to suggest ways to strengthen their ability to still meet this legislative intent and advance Smart Solar.

Adjust Mitigation Fee Reductions to Increase Development of Agrivoltaic Projects

AFT defines agrivoltaics as active agricultural production integrated into modified solar photovoltaic arrays which stay in farming throughout the full life of the solar project. Agrivoltaics is a new, promising, rapidly evolving area of development that could keep land in production and support farm viability and rural economic vitality as solar advances.

But currently, agrivoltaics represent a minute share of projects in Virginia. This is mainly because agrivoltaic projects are often more expensive to construct and operate compared to conventional ground-mounted solar due to array changes that support a farm operation (e.g., elevated or spaced array configurations, increased racking costs, livestock fencing, and irrigation equipment). But with the right policies in place, this could increase significantly to keep land in production as solar development advances.

Agrivoltaic projects fall under the larger umbrella term of “dual use” which pair solar energy generation with another use. Another example of dual use projects include ecovoltaics, which pair solar with ecosystem services like pollinator habitat. DEQ currently proposes an equal 25% reduction in the mitigation fee for “managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation.” While pollinator habitat is beneficial, it, alone, does not mitigate impacts to the local farm economy. It is also less costly to establish pollinator habitat than to integrate most agricultural production systems into arrays. Therefore, AFT recommends a smaller fee reduction for ecovoltaic arrays (e.g., 5%) to cover the minimal costs incurred by purchasing seeds and to provide a small incentive for this beneficial use. This will ensure the host community does not relinquish too much of the funding it needs to mitigate the economic impacts of taking land out of production that go unaddressed by this type of dual use.

In order to effectively incentivize agrivoltaic systems, AFT recommends that DEQ update the regulations to add:

1. A clear definition for agrivoltaics, developed by the Virginia Department of Agriculture and Consumer Services (VDACS) in consultation with other agencies and stakeholders, that includes managed grazing and crop production,
2. Incentives, in the form of fee reductions, commensurate with the planned percent of the array in production and the level of cost incurred to integrate the production system—including a larger fee reduction for the integration of crops, and
3. Details around how DEQ plans to perform monitoring and verification to ensure agricultural production continues for the full life of the array, and enforcement mechanisms (including clawbacks and penalties) should the production cease.

Two potential limitations to successfully incorporating these recommended changes into the regulations are that 1) DEQ is implements HB206 through a permit by rule process where agency authority ends once the permit is issued, and 2) HB206 didn’t require the involvement of the VDACS. However, this is currently the only opportunity to incentivize agrivoltaic projects in Virginia while solar rapidly expands. Therefore, AFT recommends 1) taking any actions possible to add these three criteria into the regulations, and 2) delaying implementation of these agrivoltaic fee reductions until all three criteria are met. Given the rapidly evolving nature of this area of development, AFT also recommends that implementation is reviewed regularly to ensure agrivoltaic incentives are helping to achieve the goals of HB206.

While Virginia should develop its own agrivoltaic definition, to aid the Commonwealth in this effort AFT’s current recommended statutory definition for what should qualify for agrivoltaic incentives is:

“A solar array that is intentionally planned and designed with agricultural producers, and is constructed and operated to achieve integrated and simultaneous production of both solar energy and marketable agricultural products—including crop production, grazing, and animal husbandry—on the land beneath and between rows of solar panels, as soon as agronomically feasible after the commercial operation date and continuing until decommissioning. Systems that include pollinator habitat or apiaries as the sole agricultural use are excluded from this definition.”

In the future, supporting innovation and adoption of agrivoltaic projects in Virginia to meet the above goals will require 1) increased investment in research and demonstration projects to better understand agronomic impacts of integrating local production systems into solar arrays, 2) an incentive program that both covers cost increases incurred when developing agrivoltaic projects and which has the authority to enforce keeping land in production throughout the life of the array, and 3) a process, led by VDACS with agricultural and energy stakeholders including Extension, to develop a strong definition of what is agrivoltaic to qualify for  incentives. When the time comes to develop and implement these more detailed policies, AFT is at the ready to assist in doing so.

Decrease Fee Reductions for Activities that Don’t Adequately Address Impacts

Ensuring that soil health and productivity is not adversely impacted during construction, operation, and decommissioning is core to achieving AFT’s second Smart Solar principle. In AFT’s survey of Virginia farmers, protecting soils and soil health were a top concern—63% of farmers surveyed agreed for the need for developers to provide up front financing to fund decommissioning so land put into solar can be farmed again in the future.

AFT applauds DEQ for including incentives in the proposed regulations for engineering and installation considerations that will protect soil health and leave topsoil undisturbed. However, AFT believes that these should be regulatory requirements that all developers must follow when siting on prime farmland rather than activities that provide heavy discounts to important mitigation fees. Providing a modest fee reduction for these activities until regulatory standards are developed is beneficial. AFT recommends DEQ reduce the proposed fee reduction ratios significantly.

Another important reason to reevaluate these proposed reductions is that it is increasingly becoming standard practice for developers to use racking and panel structures that do not require extensive grading and/or removal of topsoil. While it may continue to be important to encourage the industry in this direction, offering a 90% reduction in the mitigation required for what may become a standard practice will undercut the entire program. Similarly, the proposed fee reductions for preserving topsoil and decompacting surface soils on cut/fill areas would leave communities unable to effectively mitigate impacts related to the loss of agricultural production. Given the rapidly evolving nature of this technology all fee reductions should be re-reviewed every two years to respond to emerging changes and needs in this area. 

DEQ also proposed allowing the applicant to undertake “restoration of a degraded site to restore the characteristics of prime agricultural soils.” This not only creates a loophole, allowing applicants to reduce or remove the required fee altogether without the input of experts and community members who stand to lose the opportunity for mitigation, it is also scientifically not possible. According to AFT’s soil scientists, the USDA “prime” soils designation is based on inherent soil properties independent of soil health management. If mineral soils are still present, management activities can be undertaken to make that soil highly functional, but even this process takes time, work, and scientific supervision. An applicant not only cannot “restore the characteristics of prime agricultural soils” through management, but restoring soil health would need rigorous, specific, and well-vetted monitoring requirements. Without greater detail, AFT is concerned that this provides a large loophole to applicants that both cannot be achieved, and which leaves impacts to the local economy unaddressed. AFT recommends removing this language from the proposed regulations. 

Provide More Details to Ensure Successful Implementation of the Mitigation Program

Mitigation programs must be implemented by an agency or accredited body that has the ability to effectively mitigate impacts, including in this case to the local farm economy. Additionally, mitigation should take place as proximate as possible to the impact. In the Commonwealth the farmland protection program is now administered by the Office of Working Lands in the Department of Forestry. AFT recommends that DEQ authorize this office, in conjunction with VDACS, to administer farmland mitigation funding for agricultural conservation easements and/or projects that will support farm viability in the host community (e.g., a local processing facility).

 AFT also urges additional detail and consideration regarding the proposed conservation easement program. For example, AFT recommends including a rule that, should the easement option be pursued and no easement come to fruition or be materially close to completion within a reasonable period of time, (e.g., 18 months), the applicant be redirected to the in-lieu fee process.

Thank you for inviting this comment. Please do not hesitate to be in touch either with questions or if AFT can provide assistance in achieving these shared goals in the future.

On behalf of Hexagon Energy, we would like to submit the following comments regarding the Department of Environmental Quality amendments to 9 VAC 15-60 Small Solar Renewable Energy Project Permit Regulations to comport with the requirements of Chapter 688 of the 2022 Acts of Assembly.

On November 26, 2024, members of the Hexagon Energy (Hexagon) team had an opportunity to meet directly with staff from the Virginia Department of Environmental Quality (DEQ) to discuss their House Bill 206 (HB206) mandated regulations proposal. We greatly appreciated this opportunity and were encouraged by the conversation that many of the changes suggested in the following comments are aligned with DEQ’s desires to mitigate the environmental impact of solar projects through realistic and sensible regulations. We look forward to continued engagement with DEQ staff.

The comments presented below touch on many of the proposed regulations. As a Virginia-based renewable energy development company, we have specific interest in the proposed regulations’ impacts to solar development costs, conservation area identification, and mitigation methodologies. We have organized our comments accordingly. We then present alternative mitigation methodologies for DEQ’s consideration. Lastly, we would like to note that we sign on to the comments submitted by MAREC/ACP on behalf of the solar industry. Our comments are meant to supplement theirs and provide a perspective inclusive of our November 26th meeting with DEQ.

Impacts to Solar Development Costs:

The proposed regulation changes amendments coming to 9 VAC 15-60 Small Renewable Energy Project Permit Regulations drastically increase development costs. With already rising interconnection costs and the high risk associated with local zoning permitting, these proposed regulations will add anywhere from $23,000/MW to over $100,000/MW of additional mitigation costs to projects that are already cost- and risk-burdened. Regulations with this level of mitigation expense:

1. Work against the Virginia Clean Economy Act stated goals of developing 16,100 MW of onshore solar and wind energy;
2. Increase ratepayers’ cost burden, as project costs are ultimately passed along to ratepayers;
3. Favor developers with deep pocket books, pushing small, local developers out of the Virginia market;
4. Reduce the number of Virginians employed in solar energy development, engineering, construction, and operation;

Passed in 2020, the Virginia Clean Economy Act (VCEA) identifies solar energy as a vital source of energy Dominion Energy (Dominion) and Appalachian Power (AEP) are required to deploy in order to meet renewable portfolio standards (RPS) compliance. The VCEA also allows for costs associated with solar energy facility development, deployment, and construction to be passed onto the rate-payers of those utilities. The proposed mitigation regulations will add significant costs to the development of solar facilities and, in turn, make them more expensive for the utilities to acquire. Due to VCEA mandated RPS requirements, AEP and Dominion will continue acquiring solar projects at increased costs, passing those cost increases off to the ratepayer.

These ratepayer costs increases are especially important in the context of economic equitability. Solar facilities within AEP territory will see an outsized increase in costs because of these regulations given that area's mountainous topography and significant forestation. The land constraints within AEP’s territory do not allow for the traditional mitigation reduction techniques outlined in Table 1 of the regulations, which will likely make the average cost of a project in AEP more expensive than one in Dominion territory. This will drive up costs for utility customers who reside in southwestern Virginia/AEP territory more than other areas of Virginia.

Moreover, the regulations incentivize developers to create conservation easements on large tracts of land for cost savings on mitigation, as working with one large landowner is technically easier than working with numerous smaller ones. Landowners with larger tracts of land are more likely to be in a higher economic bracket. This creates an issue where the solar industry is forced to subsidize timber and agricultural practices of already wealthy landowners at the ultimate cost of lower-income ratepayers who will be burdened with increased costs of development associated with mitigation.

Additionally, many Virginia counties rely on solar development as a low-intensity land use that brings in significant real property tax, machinery and tools tax, and siting agreement revenue. These proposed regulations will burden development across the state and force these counties to consider other ways to meet their revenue needs. While increased citizen taxation is one way to meet this revenue shortfall, it is unpopular and rarely meets the full needs of a county. This will likely cause an increase in more intensive and permanent types of development (industrial and commercial) with more environmentally harmful effects than solar facilities.

Another component of these additional cost increases is their timing in a project’s life cycle. Solar energy development is a nuanced, capital intensive exercise with significant investment required early on in the development process. These additional mitigation cost impacts contribute to even more uncertainty in overall project costs. These will alter project investment theses and hold the potential to disincentivize further investment in solar development in Virginia.

Conservation Area Identification:

Hexagon believes wholeheartedly in the principles of conservation, environmental custodialism, and responsible development. Solar projects in the state of Virginia should be well-sited and take special care to limit their environmental impacts. Our in-person conversation with DEQ in late November was characterized by constant agreement in the mission and purpose of these proposed regulations. With that being said, there are several conservation area identification methodologies that DEQ uses that we believe do not accurately represent areas of high conservation importance. We would like to see these addressed in a new version of the regulations.

DEQ leans heavily on datasets collected under Governor Northam’s ConserveVirginia 3.0 program for identification of areas of conservation. If a project impacts an area meeting specific criteria, it must mitigate for these impacts through the methodologies identified in the proposed regulations. The ConserveVirginia 3.0 dataset is designed to “guide state investments for land conservation.” It is not intended to be a definitive land classification tool upon which mitigation requirements through regulation are determined.

The Ecological Cores clause of the proposed regulation is an example of this conflation of “guideline” and “definition.” Under the current proposal, projects impacting natural heritage resources described in the Virginia Natural Landscape Assessment Ecological Cores assessment must mitigate these impacts at a ratio of 7:1 for C1 cores and 2:1 for C2 cores. The Virginia Natural Landscape Assessment Ecological Cores assessment was conducted in 2016 by the Department of Conservation and Recreation. The dataset has not been refreshed since its initial publication, is not slated for refresh at any point in the future, and is not presented as a definitive classification resource. Additionally, this dataset does not account for any land that has since been cleared and timbered. We believe this dataset is not suitable as a foundational piece within the regulation framework. DEQ should consider revising this conservation area category by determining mitigation requirements through impacted forest type, rather than ecological core. Special importance should be placed on hardwood and old-growth forests that have a diverse species mix.

Furthermore, we believe DEQ is currently overemphasizing the environmental and ecological importance of monoculture timber plantations. Timber pine plantations are ecologically destructive and reduce biodiversity through their practices. Solar farms, in combination with native pollinators and plant species, provide ecological rehabilitation for areas impacted by timbering operations. If a solar farm impacts land currently used for planted pine plantation timbering (forested areas with more than 35% monoculture pine species), that impact should not be considered as severe as impacts to hardwood and old-growth forests. We believe this change aligns with DEQ’s desire to disincentivize development on areas of diverse forest mix that call for increased conservation.

We believe the additional 100’ buffer added to any project disturbance zone is arbitrary and unnecessary. Our conversation with DEQ revealed similar thinking from staff. Project boundary disturbance zones should be determined by true construction disturbance, similar to stormwater disturbance standards. This includes land that is taken out of its previous use and developed to hold any infrastructure related to the solar facility. Moreover, the additional 100’ buffer can frequently fall outside of the development site control area, forcing the industry to over-mitigate for areas they cannot and will not disturb. We suggest the removal of this conservation area identification clause.

Mitigation Methodologies:

Solar projects must mitigate the environmental impacts they cause in the course of their development and construction. Hexagon, as well as other solar developers, believe mitigation comes in many forms. This conflicts with DEQ’s proposed mitigation methodologies, which are limited to “conservation easements” except in case-by-case instances that are undefined in the proposed regulations. There are several issues with this adherence to conservation easements, and we would like to highlight these issues.

Conservation easements, as described by the proposed regulations, are incongruent with historical conservation easement definitions. In the proposed regulations, conservation easements for the mitigation of forested land “should allow for timbering practices,” and conservation easements for the mitigation of prime farmland should “allow for agricultural practices.” While this aligns with the goals of HB206, it does not align with the values and mission of many of the eligible conservation easement holders as outlined in Section G.3. of 9VAC15-60-60 (Mitigation Plan), who tend to take a more conservative conservation approach that does not allow productive activity on the property. This limits the number of organizations that developers can partner with to execute conservation easements for mitigation and can bottleneck the permitting and development process.

Given the requirements outlined in Section G.3. of 9VAC15-60-60 (Mitigation Plan), conservation easement holders allowable by the standards of these regulations do not currently have a market for solar facilities to associate conservation easements with projects for PBR. Our research suggests that conservation easements will be expensive products in any marketplace, with pricing likely to follow nutrient bank pricing of up to $90,000 per acre, leaving in-lieu fees as the most attractive option for developers. On the topic of In-lieu fees, they are an appreciated mitigation methodology, but we believe they do not necessarily accomplish the underlying goal of actual land conservation. With a lack of other mitigation methodologies, there will be an overreliance on in-lieu fee payments. This is something we see as suboptimal from a land conservation perspective.

Additionally, conservation easements in the proposed regulations exist in perpetuity. We believe this is a serious oversight by DEQ. In our experience, small landowners are extremely reluctant to enter their land into perpetual easements. The reasons for this are multifold, but generally stem from the reluctance to encumber land and forego the possibility of future development of any kind.. This reluctance by smaller landowners to enter into perpetual conservation easement agreements will push anyone seeking to create a conservation easement into negotiations with parties wielding outsized influence due to their larger landholdings. There is more willingness for non-institutional landowners to put their land into conservation easements that are contemporary with the project’s lifetime.

The conservation easements mitigation methodology puts emphasis on “off-site” mitigation. We believe this is counterintuitive to DEQ’s goals. If disturbance is happening on site, so too should mitigation where possible. Removing the perpetuity clause opens up more possibilities for on-site mitigation, as it is much more feasible for developers to conserve areas within a property that is already being partially developed for solar, given their pre-existing relationship with landowners and the congruent timelines. Practically speaking, there is a greater chance of success in convincing a landowner who is already participating in solar development to agree to conserve other portions of their property than a third-party who is getting no additional benefits beyond easement payments.

Alternative Mitigation Solutions:

We propose the following mitigation alternative solutions for inclusion into a new regulation proposal. These alternatives were conceptualized with input from other solar energy developers, as well as DEQ staff. Generally, we have stuck to a common theme: more flexibility needs to be provided to developers for mitigation. Conservation easement creation as a mitigation methodology alone is unrealistic, overly burdensome from a cost perspective, and fails to capture innovative ways in which the solar industry can mitigate its impacts. We recognize DEQ has carved out the opportunity for “creative” solutions to mitigate solar development impacts. We appreciate those opportunities, but believe explicitly enumerating alternatives would benefit the speed and feasibility of the PBR process by providing the industry with more options for mitigation

• When solar development impacts monoculture pine plantations, the mitigation requirement should not be the creation of conservation easements, but rather the planting of native pollinators and plant species in areas under panel and in other suitable areas of the disturbance zone. This mitigation strategy helps to reverse the environmentally destructive actions of industrial timbering by increasing biodiversity and restoring depleted soils and native ecosystem balance.
• We recommend removing the mitigation district classification, given that the ultimate goal of these regulations is to ensure that the solar industry offsets its impacts on the agricultural and forestal lands across the Commonwealth. The “mitigation district” should be the entire state of Virginia, and not limited to surrounding watersheds.
• Instead of mandating conservation easements, DEQ should promote the creation and usage of Agricultural and Forest Districts (AFDs). The Agricultural and Forestal Districts Act (§ 15.2-4300 of the Code of Virginia) outlines the policy's purpose to be similar to that of HB206 and its proposed regulations. AFDs create conditions that promote agricultural and forestal use of land without tying the land up in perpetuity to a conservation easement. We highly recommend this be considered as an alternative to conservation easements as a mitigation technique. To effectively leverage the pre-existing AFD mitigation technique as a response to solar, the regulations should tie the AFD length to a solar project’s lifetime. We believe approaching the issue of conservation of forested and agricultural spaces from an AFD perspective will greatly increase the number of landowners who would be willing to participate in such conservation efforts. It would also promote the creation of AFD programs in counties that do not already have them.
• In cases where there is active cropping or grazing on a solar site, herein referred to as ‘agrivoltaics,’ we believe that site requires no mitigation given that the land is simultaneously being used for solar energy production and activities permitted in a conservation easement. Agrivoltaics provide the intended benefit of mitigating impacts to prime farmland. It contrasts with a conservation easement approach, as land put into a conservation easement alone is not required to be used for agricultural purposes (it can, but it’s not required to do so). Put simply: if a site mitigates its impacts to prime farmlands through agrivoltaics, there should be no additional mitigation requirement for the disturbed soils. Currently, agrivoltaics is identified as a mitigation reduction methodology. It should be a mitigation absolution methodology.
• Areas that remain undisturbed within the project's properties should be eligible to count towards mitigation if adequate site control agreements demonstrate that the land will remain undisturbed for the project's lifetime. This promotes co-located project disturbance zones and conservation easements that mitigate said zones.
• The in-lieu fee that is outlined 9VAC15-60-60 Section H refers to a projected administrative fee cost. We would like this amount to be estimated for projects of different sizes so the developer understands what to expect if pursuing this option.
• There should be different and lower mitigation requirements for solar development that occurs in areas characterized as low-to-moderate income (LMI) communities. If DEQ continues to use watershed basins as an analog for mitigation districts, we suggest “significant LMI rate-payer populations” be defined as 5% LMI earners per mitigation district. Emphasizing solar development in LMI communities additionally aligns with the goals of the Inflation Reduction Act to incentivize development in disadvantaged communities.
• To promote the establishment of biodiverse habitats, DEQ should reward solar facilities that utilize a diverse mix of native and naturalized hardwood evergreen and deciduous shrubbery and trees for their visual buffers with lowered mitigation ratios. It should also reduce mitigation ratios for projects that create conservation easements on land with diverse forest mix compared to monoculture timber pine plantations.
• If DEQ continues to offer conservation easements as a mitigation methodology, those easements should be contemporary with the project’s lifetime, not perpetual. Many landowners who would be ideal candidates to host conservation easements are likely to avoid an agreement that ties their land up in perpetuity. Conservation easements have their place in the conservation world, but they are not a scalable enough mitigation methodology to support health levels of solar energy development.
• If DEQ is adamant that conservation easements be an exclusive mitigation method, we recommend that DEQ, alongside developers and other stakeholders, establish a marketplace for conservation easements within the state. A clause should be added that allows any conservation easements created after January 1, 2025, to be eligible for a public “market” in which solar developers can purchase these easements for credit towards their PBR application. This can operate similarly to the existing wetland and nutrient bank credits used for wetland impact mitigation by various development types.

Conclusion

We recognize DEQ is mandated by the Commonwealth, through HB206, to create these regulations. We appreciate the tremendous effort that has gone into the current proposal and agree with the aims of DEQ to disincentivize environmentally harmful solar development. The above comments are meant to refine and create more realistic methodologies to achieve environmental protection goals. We appreciate DEQ’s consideration of these comments and look forward to the new proposal’s release. As a final note, small businesses based in Virginia, such as Hexagon, have spent invaluable time understanding the local community’s needs and developing best-in-class projects based on this information. We believe there is significant alignment in our mission to be a responsible development company and DEQ’s desire to protect environmentally sensitive areas.

On behalf of Friends of the Rappahannock (FOR) please accept the following comments on the proposed regulations that amend the Small Renewable Energy Projects (Solar) Permit by Rule (PBR), 9VAC15-60. 

FOR generally supports the proposed 206 regulations that will mitigate the loss of prime agricultural soils and contiguous forestlands. We believe these regulations are necessary to help balance achieving the WIP III Chesapeake Bay cleanup goals and commitments to reduce carbon emissions mandated by the Virginia Clean Economy Act (VCEA). With this in mind we appreciate the opportunity to offer a few suggestions to improve the proposed regulations.

Mitigation Districts

The mitigation districts as proposed are too broad. They should be made smaller to ensure that mitigation occurs as close to projects as possible. This will help ensure that local water quality and habitat are not sacrificed and extensive clearing of land is not concentrated in one region. Localities are more likely to support projects that are not removing forest and agricultural resources and fragmenting the rural landscape of their communities.

Forestland Mitigation Reductions for Riparian Forest Buffers

Draft regulation currently allows the ratio of land required in the conservation easement or easements to be reduced by providing land containing existing riparian forest buffers within the easement. Additional credit should not be given for existing riparian forest buffers in easements. The intent of this regulation is in part to mitigate for the total amount of forestland lost.  Forestland not existing in a riparian buffer still provides a variety of ecosystem benefits. Tree canopy in Virginia continues to decline despite significant efforts to stem the loss as we strive to meet our Chesapeake Bay WIP III cleanup goals. 

Conservation Easements

As proposed closing on any required easements would have to occur within one year of the date of issuance of the PBR, unless extended by the department for good cause. FOR is concerned about what backstops exist to enable DEQ to ensure required mitigation is completed. DEQ should be given any tools needed to ensure conservation easements are recorded and mitigation is completed in one year.

Thank you for the opportunity to submit these comments as we work together to ensure Virginia's natural resources are safeguarded while efforts are made to meet the goals of the VCEA.

Subject: Public Comments on Proposed Amendments to 9 VAC 15-60 related to Small Renewable Energy Projects and Impacts to Natural Resources
Dear Ms. Tripp,
I write on behalf of Chesapeake Conservancy, a non-profit organization with an office and staff in the Commonwealth of Virginia, committed to preserving water quality, forest ecosystems, and wildlife habitat in the Chesapeake Bay region. We recognize the importance of renewable energy, including solar projects, in combating climate change and meeting our collective goals toward a clean energy economy. The Chesapeake Conservancy urges the Virginia Department of Environmental Quality (DEQ) to strengthen its proposed amendments to 9 VAC 15-60 to better mitigate the adverse environmental impacts of solar energy development.
The Chesapeake Conservancy is grateful for the opportunity to provide the following comments on the permit by rule (“PBR”) regulations proposed by Virginia Department of Environmental Quality. We provide these comments with the dual goals of protecting the health and safety of Virginia citizens, and protecting water quality, wildlife habitat, prime agricultural soils and forest resources.
Below, we outline our concerns regarding the proposed regulations and provide recommendations for strengthening their provisions to ensure greater alignment with Chesapeake Bay goals.
I. Concerns Regarding Forest Loss and Habitat Fragmentation
Impact on Forest Ecosystems and Water Quality
The loss of contiguous forest lands for solar development has significant implications for the Chesapeake Bay’s water quality and regional biodiversity. Forests act as critical buffers that reduce sedimentation and nutrient runoff into waterways, protecting the Chesapeake Bay from pollution. The threshold set by statute is 50 acres of contiguous forest lands before requiring mitigation. This threshold is high, allowing for the loss of substantial forest areas without any compensatory measures.
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Depending on the location of the forest, its impact on water quality and wildlife habitat value can vary greatly. Projects located within 300 feet of streams and wetlands could have a significant impact on water quality. In cases where projects may be located proximate to stream and wetland resources, the size of project may be less important than its location.
Habitat Fragmentation
The proposed 1:1 mitigation ratio for forest disturbance fails to adequately account for the ecosystem services provided by forests. A higher ratio for C1 and C2 ecological cores (7:1 and 2:1, respectively) is appropriate, as these cores serve as critical wildlife corridors. However, for general forest lands, we recommend increasing the ratio to at least 1.5:1 (and better, 2:1) to better reflect their ecological importance. This is more consistent with other mitigation frameworks in Virginia and nationally.
Recommendation: Set a higher standard mitigation ratio (e.g., 2:1) for all forest land disturbances to minimize habitat loss and fragmentation. For projects located within 300 feet of any stream or wetland, additional mitigation should be required. Mandate the inclusion of riparian buffers of at least 35-feet in width and strict erosion control measures as part of all solar project designs to protect water quality.
II. Protection of Prime Agricultural Soils
Solar projects often target flat, open lands, which overlap with prime agricultural soils. The regulation requires mitigation only if more than 10 acres of prime soils are impacted. Given the increasing threats to food security and soil health, this threshold is insufficient. Future regulations should consider a lower threshold. There is insufficient incentive to prioritize brownfields or other marginal lands over prime agricultural soils.
Recommendation: Incentivize the siting of solar projects on marginal lands, such as brownfields or previously disturbed areas, with lower and more flexible mitigation requirements, to preserve agricultural productivity.
III. Impacts on Wildlife and Pollinator Habitats
Threatened and Endangered Species
Expanding the definition of “wildlife” to include threatened and endangered (T&E) insects is a positive step. However, mitigation measures must ensure that solar developers adopt comprehensive strategies to avoid and minimize impacts on all listed T&E species.
Pollinator-Friendly Solar Projects
The inclusion of the Pollinator-Smart Scorecard is a commendable initiative. Pollinator-friendly practices can enhance biodiversity and provide ecosystem services. However, the proposed regulation does not require adherence to the scorecard’s recommendations, which limits its effectiveness.
Recommendation: Make compliance with the Pollinator-Smart Scorecard mandatory for projects exceeding a specified size threshold (e.g., 5 MW). This will ensure that solar developments contribute positively to biodiversity.
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IV. In-Lieu Fees and Conservation Easements
The proposed use of in-lieu fees and conservation easements to offset impacts is promising but must be structured to ensure meaningful conservation outcomes. The current $3,000 per acre minimum for in-lieu fees may undervalue the ecological and economic contributions of prime agricultural and forest lands in some areas of the state.
Recommendation: Adjust in-lieu fees to reflect the true conservation value of the impacted lands, using metrics such as ecosystem service valuation. Additionally, prioritize the use of easements within the same watershed to maintain local ecological integrity. Last, conservation easements protect lands that, in general, are not imminently threatened by conversion. Conservation easements that include a restoration project or that can document an imminent threat of conversion should be given higher priority as approved mitigation.
V. General Recommendations for Strengthening the Regulation
1. Cumulative Impact Assessment: Require developers to evaluate the cumulative impacts of multiple solar projects within the same region, particularly on water quality and wildlife corridors.
2. Stakeholder Engagement: Enhance opportunities for public participation by extending the 45-day comment period for mitigation plans to 60 days.
3. Data Transparency: Publish annual reports on mitigation outcomes, including the acreage of conserved lands and the status of restored habitats, to ensure accountability.
While we support renewable energy initiatives, including solar development, we emphasize the need to balance these efforts with robust environmental protections. Strengthening the proposed amendments to 9 VAC 15-60 will ensure that Virginia can achieve its clean energy goals while safeguarding the Chesapeake Bay’s ecosystems.
We appreciate the opportunity to provide input on this critical issue and welcome further engagement with the Department of Environmental Quality to refine these regulations.
Sincerely,
EJ Amyot
Chief Operating Officer
Chesapeake Conservancy

Ms. Susan Tripp 

Department of Environmental Quality 

1111 East Main Street, Suite 1400 

P.O. Box 1105 

Richmond, VA 23218 

Alliance for the Shenandoah Valley strongly supports the draft amendments required by HB206 to advance renewable energy while protecting farm and forest land. We believe that appropriate mitigation measures will encourage solar developers to avoid our best working farms and intact forests, employ proven best management practices to minimize negative impacts to soil and water, and, if necessary, mitigate damage to natural resources.  

Alliance for the Shenandoah Valley is a nonprofit conservation organization that envisions a Shenandoah Valley sustained by farms and forests, clean streams and rivers, and thriving communities. Since 2019, Alliance staff and board have been working with local communities, local governments, and statewide partners to encourage a transition to renewable energy that complements, not conflicts with, our agricultural economy and water quality restoration efforts. 

Utility-scale projects that are thoughtfully-sited and carefully-constructed are more likely to be successful and supported by the communities in which they are located. We believe that DEQ’s proposed mitigation framework will benefit solar development by increasing the likelihood that solar developers bring forward well-sited and built projects. 

As the draft amendments move forward, we encourage DEQ to consider decreasing the size of the “mitigation district” as defined in the draft regulation. The Shenandoah River Basin is a very large land area, and farmland protection efforts, in particular, will be most effective as close to the impact as practical. Similarly, we support the provision that allows mitigation included in a siting agreement approved by a locality to satisfy the DEQ mitigation obligations. Several Shenandoah Valley counties have conservation easement authorities with farmland protection goals that are aligned with the goals of HB206. These publicly-supported land protection programs are a logical vehicle to achieve the mitigation objectives.

We applaud the legislature for adopting common sense mitigation legislation in 2022, and we thank the stakeholders and agency staff at DEQ for bringing forward a reasonable regulation. 

Thank you for the opportunity to comment. 

Ms. Tripp, 

The Southern Environmental Law Center, Appalachian Voices, the Chesapeake Climate Action Network, Sierra Club and the Natural Resources Defense Council, appreciate the opportunity to submit comments on this important matter. Please see our comments which are available at this link: https://www.southernenvironment.org/wp-content/uploads/2024/12/SELC-AppVoices-CCAN-Sierra-Club-NRDC-HB206-Comments-FINAL.pdf

Sincerely,

Emma Clancy

Josephus Allmond

Southern Environmental Law Center

I appreciate the input from the agricultural and forestry industries on HB206. It is of utmost importance that we protect our essential and resource conserving economic practices that our local communities have been built upon, as well as our vital and beautiful Virginia view sheds. Solar has proven itself that it does not work efficiently as a source of reliable power, while in the meantime destroying forests, farms, communities, waterways, and ecological complexes. I prefer that there be no mitigation allowed at all. This is an utterly ridiculous concept, robbing Peter to pay Paul. The solar industry should simply not be permitted to build on prime farming land and destroying carbon absorbing healthy soil in the process. Nor should ever a tree or forest that supplies so much life to this earth be allowed to be cut or razed in order to place a solar installation upon the land. According to UVA Weldon center's recent estimate, 130,000 Virginia acres have been destroyed by solar, and the majority of these installations are poor producers of electricity.  Face it, it is a bad idea, and no more land should be utilized unless it is on a brownfield, wasteland, or on an industrial rooftop. While I applaud your concept of mitigation of both forest and farmland, I do not believe this to be a solution. It would be preferable to place even stronger guardrails on this land consuming and groundwater polluting industry. The grandfather clause should also be stricken completely from the text, as well as any loopholes giving solar developers more leeway on circumventing local requirements. Neither should more credence be given to radical "environmental" groups and lobbyists than to actual people who live on and with the land.