TITLE 9. ENVIRONMENT

DEPARTMENT OF ENVIRONMENTAL QUALITY

Proposed Regulation

Title of Regulation: 9VAC15-60. Small Renewable Energy Projects (Solar) Permit by Rule (amending 9VAC15-60-10 through 9VAC15-60-140).

Statutory Authority: §§ 10.1-1197.6 of the Code of Virginia.

Public Hearing Information:

November 19, 2024 - 10 a.m. - Bank of America Building, Third Floor Conference Room, 1111 East Main Street, Richmond, VA 23219.

Public Comment Deadline: December 6, 2024.

Agency Contact: Susan Tripp, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 664-3470, or email susan.tripp@deq.virginia.gov.

Basis: Section 10.1-1197.6 of the Code of Virginia requires the Department of Environmental Quality (DEQ) to promulgate regulations necessary to carry out appropriate powers and duties for permitting activities. Chapter 688 of the 2022 Acts of Assembly expands definitions and requirements for significant adverse impacts and requires DEQ to develop regulations in response to this expansion.

Purpose: This regulatory action is necessary in order for DEQ to carry out the requirements of Chapter 688 of the 2022 Acts of Assembly. The regulatory action is essential to protect the health, safety, and welfare of Virginia citizens because it establishes necessary requirements to protect Virginia's prime agricultural soils and forest lands that may be affected by the construction and operation of small renewable energy projects.

Substance: The Small Renewable Energy Projects (Solar) Permit by Rule (9VAC15-60) establishes the specific criteria required for a complete application to construct and operate a solar project in Virginia. Substantive proposed amendments include: (i) adding and clarifying definitions; (ii) adding prime agricultural soils and forest lands to the existing requirement for the analysis of the beneficial and adverse impacts to natural resources; (iii) adding mitigation plan requirements for prime agricultural soils and forest lands; (iv) clarifying the timeframe for submitting a notice of intent; (v) clarifying that avoidance mitigation as it relates to cemeteries is required to ensure consistency with state law; (vi) clarifying requirements for site plans and public participation requirements; (vii) specifying the operation, recordkeeping, and reporting requirements; (ix) clarifying which sizes of projects are exempt from permitting and the procedures for modification or transfer of ownership of a permitted facility; (x) incorporating other provisions previously identified in the 2019 solar permit by rule amendments, excluding fees; and (xii) improving overall regulatory structure, procedures, and use.

Issues: The primary advantage of the regulation is the overall minimization of environmental damage as a result of the siting of solar facilities. The amendments encourage the avoidance of damage to prime soils and forest lands while ensuring that any damage that does occur is appropriately mitigated and continues to facilitate the employment of solar power while establishing more protective mitigation measures. A potential disadvantage of the amendments is the increased cost to developers due to the implementation of the additional mitigation requirements. The increased cost may discourage developers from locating facilities in Virginia.

The advantage to the department is the continued implementation of an overall streamlined process for authorizing solar facilities. The disadvantage includes the increased number of elements that will need to be reviewed and verified by department staff within the same 90-day authorization issuance deadline.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Chapter 688 of the 2022 Acts of Assembly,² the Department of Environmental Quality (DEQ) proposes to (i) require conservation easements and in-lieu fees as the two types of mitigation for those solar projects that are deemed by Chapter 688 to have a significant adverse impact to prime agricultural soils, contiguous forest lands, or lands enrolled in a program for forestry preservation; (ii) consider threatened and endangered insects as wildlife for mitigation purposes; (iii) require permit applicants to submit a pollinator smart/bird habitat scorecard; (iv) establish several new timeframes to avoid delays in project construction; and (v) increase the exemption from notification or certification requirements from projects with 500 Kilowatt to one Megawatt (MW) electric generation capacity. In addition, the proposal includes several clarifying and structural changes to the regulatory language.

Background. This regulation became effective in 2012,³ and it required the applicant to prepare a mitigation plan if DEQ determined that significant adverse impacts to wildlife or historic resources or both were likely. According to DEQ, the program has grown rapidly and in 2017 a legislative modification increased the size of projects eligible for a permit-by-rule⁴ from 100 MW to 150 MW.5 This increase in capacity has resulted in larger projects that seek permits, which correlates to an increase in the acreage per project.⁵ This increased impact on the acreage of land affected has led to concerns about the loss of prime agricultural soils and forest land as part of this impact. Chapter 688 addressed these concerns for solar projects by declaring that, "A project will be deemed to have a significant adverse impact if it would disturb more than 10 acres of prime agricultural soils or 50 acres of contiguous forest lands, or if it would disturb forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233."⁶

The addition of this language in the statute effectively requires DEQ to require mitigation for impacts to prime agricultural soils and forest lands that are above the legislative thresholds. Notably, no such mitigation is automatically required for solar projects that are below these thresholds, although a mitigation plan for endangered insects or historic resources may be required for any project if the initial analysis indicates a need. However, the legislation makes the presumption that any project above these thresholds requires mitigation. These aspects of the regulatory approach thus result from the legislation itself, and not the regulation.

In this regulatory action, DEQ proposes two types of mitigation for solar projects that exceed the statutorily mandated thresholds for impacts to prime agricultural soils, contiguous forest lands that satisfy the legislative criteria, and C1 or C2 ecological cores, as follows:⁷

1. Conservation Easements: The use of conservation easements would require the direct protection of land via the acquisition of a conservation easements by the applicant.⁸ This would be accomplished by requiring a certain mitigation ratio of the area conserved to the area disturbed (e.g., a ratio of one to two would require one acre to be conserved for every two acres of disturbance). Although the proposal allows for reduced mitigation ratios under certain cases (e.g., for land containing riparian forest buffers within the easement, or for lands where partial mitigation options have been taken on site to avoid grading, or removal of topsoil, etc.), the following primary mitigation ratios are proposed:

a. One to one ratio for disturbance of more than 10 acres of prime agricultural soils;

b. One to one ratio for disturbance of more than 50 acres of contiguous forest lands;

c. One to one ratio for disturbance of forest lands enrolled in a program for forestry preservation;

d. Seven to one ratio for disturbance of forest land categorized as Ecological Core C1; and

e. Two to one ratio for disturbance of forest land categorized as Ecological Core C2.

2. In-Lieu Fees: In this alternative mitigation approach, "in lieu" of acquiring conservation easements, the applicant would pay a fee to a third party designated by DEQ. The in-lieu fee would be used to acquire conservation easements. The amount of the in-lieu fee is calculated to approximately equal the cost to the applicant of acquiring the required conservation easements.

Furthermore, regardless of whether the applicant obtains an easement or pays the in-lieu fee, the proposal would require that if a draft mitigation plan was not provided by the applicant as part of the initial application, the applicant must develop a mitigation plan and conduct a 45-day public comment period as per the legislation. Any application for a small renewable energy project received for which an interconnection request is applied for and received by December 31, 2024, would not be subject to these new provisions. This regulation would also be amended to incorporate provisions that were previously included in a 2019 regulatory action that was not implemented.⁹ These provisions include changes that would consider threatened and endangered insects as wildlife for mitigation purposes; require submission of a pollinator smart/bird habitat scorecard; establish several new timeframes to avoid delays in project construction; increase the exemption from notification or certification requirements from projects with 500 Kilowatt to one MW generation capacity. The remaining changes would clarify definitions, the timeframe for submitting a notice of intent, the use of avoidance mitigation as it relates to cemeteries, the requirements for site plans, public participation requirements, recordkeeping and reporting requirements, and the procedures for modifying or transferring ownership of a permitted facility. In summary, this regulatory action is necessary in order for DEQ to carry out the requirements of Chapter 688; it would also be utilized to address certain requirements from a 2019 regulatory action and to clarify some of the existing requirements.

Estimated Benefits and Costs. Implementation of Chapter 688 of the 2022 Acts of General Assembly: In the absence of Chapter 688, a solar project permittee would be mainly concerned with permit application costs, the cost of acquiring land for the project, ongoing operational costs, and the revenues expected from the solar project operation. It is worth noting that the legislation does not change these considerations for the applicant but adds other considerations in terms of additional costs for the permit application and the cost of either obtaining conservation easements, either directly by the applicant or indirectly via the in-lieu fee, or the avoidance of sites containing the protected resources. Notably, because an easement must be obtained either directly or indirectly, these costs would be incurred in addition to the cost of purchasing the protected land for the project itself. To the degree these costs increase the overall cost of a solar project on protected land, they act as a disincentive to the development of solar projects on protected land. All other things being equal, therefore, an applicant would face a financial incentive to use non-protected lands for solar projects up until the point where the cost of using non-protected land equals the cost of using protected land. These incentives only apply to solar projects, however, and not to other kinds of development, wherein disincentives for the use of protected land may not exist. In light of this context, which results from the legislation, an analysis of the regulatory change must factor in benefits that may not necessarily accrue to the solar project owner but may accrue to the public in the form of effects on the general welfare. So, the ensuing discussion of the regulatory change addresses the additional economic costs and benefits beyond those that would have been expected if Chapter 688 had not been enacted. In other words, the economic analysis of a regulatory change compares the situation that existed before the regulation was amended to the situation that exists after the regulation is amended, and specifically assesses those changes that result from the regulation itself and not the legislation. That said, the legislation and consequently the proposed regulation strive to strike a balance between two competing goals.¹⁰ On one hand, solar development proponents are concerned with fair treatment of agricultural and forest lands impacted by solar projects in comparison to the treatment of those lands by other potential uses. This group aims to avoid constraints on land that is impacted by solar projects that are not imposed on other uses of the same land. Therefore, a key concern for solar development proponents is that the regulatory framework not become so onerous and complex that solar energy is no longer economically feasible in Virginia. On the other hand, advocates for the protection of prime agricultural soils and forest lands are concerned that these resources cannot be replaced if converted to solar use. They argue that once prime agricultural soils and forest lands have been disturbed through subsoil compaction and loss of structure, they cannot be restored to their pre-disturbance levels of prime productivity. Because Virginia's largest industry in terms of land use is agriculture and forestry, the loss of prime soils and forest lands is viewed by this group as a direct threat to important economic and natural resources. Accordingly, such loss must be avoided, minimized when possible, and mitigated when an impact cannot be avoided. This is particularly true for C1 and C2 ecological cores, which by definition form continuous wildlife corridors and constitute potentially irreplaceable habitat and reservoirs of native species. In the context of these competing interests, the legislation's main impact was to deem certain solar projects as having a significant adverse impact and therefore subjecting such projects to mitigation and the associated costs. These projects are those that would disturb more than 10 acres of prime agricultural soils or 50 acres of contiguous forest lands, or that would disturb forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia. One such cost is the increased cost of preparing an application for a solar project. Under the proposal, all applicants would incur additional costs to map and calculate the impact of the proposed development on prime agricultural soils, contiguous forest lands, and C1 and C2 ecological cores to determine if they fit the legislation's criteria. The regulation identifies geographic information system resources that may be used to identify these resources without physical surveys. DEQ reports that based on informal interviews of consultants, the additional time required to map and calculate the impacts on these resources may average approximately eight hours. Assuming a rate of $100 per hour for consultant time, this increased cost per application is estimated to be $800. Based on data from 2019-2023, there were 13.2 permits issued per year. Thus, the additional application costs would aggregate to approximately $10,560 for all project applicants in a typical year. More significantly, other compliance costs would be related to the cost of acquiring conservation easements, whether the applicant plans to secure such easements directly by himself or indirectly via the payment of the in-lieu fee to a third party to obtain the required conservation easement. The components of the in-lieu fee would include the projected administrative costs and the predicted cost of a perpetual easement necessary to protect the required acreage of land (easement cost). The administrative costs are not currently known, but would include DEQ staff time, legal fees, due-diligence costs, stewardship fees paid to the holder, etc. The regulation would be amended to stipulate that the per-acre easement cost is the higher of either $3,000 per acre or the change in the value of land as a result of solar use. Because the administrative costs are applied to the entire project, they are not calculated on a per-acre basis. Thus, the total compliance costs associated with the in-lieu fee are the sum of the administrative costs (fixed) and the easement cost (per acre). More precisely, the regulation would be amended to stipulate that the proposed in-lieu fee of a perpetual easement would be equal to "the greater of (i) $3,000 per acre adjusted annually by the percent change (2024 base year) in Virginia cropland value determined by the USDA National Agricultural Statistics Service, or (ii) the difference between the most recent assessed use value per acre of forest or agricultural land, as applicable, and the full assessed value per acre of the land affected by the solar project prior to re-assessment as a solar use. The applicant shall provide [DEQ] evidence of the assessed values from the local assessor. In the event the jurisdiction where the project is proposed does not participate in use value assessment, the applicant may provide a calculation of the use value provided by the Virginia State Land Evaluation Advisory Council (SLEAC)." In other words, those solar permit applicants who choose to use protected land would have to incur additional costs either to obtain conservation easements themselves or to pay an in-lieu fee to a third party of at least $3,000 per acre. DEQ reports that the $3,000 threshold is derived from data on appraisals for land preservation tax credits data provided by the Virginia Department of Taxation; according to DEQ, a single value was used because there is no statistical difference between the appraised values for forest land and for farmland preservation tax credits. Additionally, over the 2019-2023 period the annual number of solar permits issued averaged 13.2 permits per year; likewise, the permits involved 794 MW of electric production capacity and 9,483 acres of land on average each year.¹¹ However, this acreage is the entire real estate parcel for the project, some of which may not be disturbed due to slopes, wetlands, buffers, etc. Thus, the reported acreage involved in the permitted projects likely overstates the area of disturbance. However, there are no available data to estimate how much of the disturbed land is prime agricultural soils, forests, C1, or C2 ecological cores. The cost of obtaining conservation easements directly, or indirectly via in-lieu fees, would effectively put a surcharge on the protected resources. This surcharge would incentivize solar developers to seek land that does not contain these protected resources up until the point where the cost of this alternative land equals the cost of mitigation. Thus, it is expected that the proposed mitigation requirements would lead solar developers to select those sites that minimize the disturbance of forests and prime agricultural soils. (Over time, if these incentives increase the demand for un-protected land then the cost of unprotected land would increase.) However, if a project disturbs lands that would require a conservation easement or in-lieu fees, these costs would add to the overall project costs. To the degree that unprotected land is not available, or is more costly than protected land, the additional costs associated with using protected land may reduce the incentives to start a solar renewable energy project and, DEQ notes, could "slow the development of utility scale solar development in the Commonwealth."¹² To the extent that the proposed implementation of the legislatively mandated regulation discourages solar projects, the benefits of solar energy may be curtailed. Generally, small solar projects are beneficial to the environment because they generate electricity that might otherwise be generated by facilities that rely on the combustion of fossil fuels. Public health and welfare are thus protected to some extent because, as noted by DEQ, solar generation of electricity helps to "reduce dependence on foreign oil and helps increase jobs and economic development related to construction and operation of these projects." DEQ adds that the mitigation requirements could potentially result in increased consumer costs for electricity.¹³ Thus, the consequences of this proposal may be a reduction in the benefits expected from solar energy. On the other hand, the additional solar project costs on applicants created by the in-lieu fees would generate new revenues that would be directed to conserve forests or prime agricultural lands in perpetuity, thereby offsetting the costs to the applicants and any negative societal or welfare impacts. In brief, DEQ estimates that the current value of conserving an acre of forest land in perpetuity is $273.73; the current value of conserving an acre of farmland in perpetuity is $1,558.99; and the values of conserving C1 and C2 ecological cores are indeterminate because there are no data on the monetary value of such lands. The detailed data and methodology used for these estimated values are provided in the appendix. As discussed in the appendix, no data exist with which to estimate the actual value of conserving these specific lands, and therefore certain statewide data were used by DEQ. However, the inherent value of these cores is indicated by the proposed conservation ratios: instead of the standard one to one ratio used for forests or prime agricultural lands, the proposed conservation ratios for C1 and C2 ecological cores are seven to one and two to one, respectively. These ratios indicate a higher value relative to farmland or forests by a factor of seven and two, respectively, indicating that such ecological cores are precious if not invaluable. Given the twofold and sevenfold increase in the one-to-one standard-proposed mitigation ratio and the associated costs, a solar developer would be highly incentivized to avoid impacting such precious lands. In addition, research referenced in the legislatively mandated study¹⁴ suggests that approximately 25% of solar facilities in Virginia have disturbed farmland and almost 58% have disturbed forested land. The remaining 17% of disturbed land are composed of pasture (7.0%), harvested/disturbed (3.4 percent), NWI/other (2.4 percent), shrub/scrub (1.7%), tree (1.4%), turf/grass (1.0%), impervious (0.2%), open water (0.0%), and barren (0.0%) land. Although this research illustrates the types of land that may be disturbed, it does not identify disturbance to prime agricultural lands or forests. Additional offsetting benefits may be related to the reduction in uncertainty that this regulatory action will achieve by determining the appropriate mitigation techniques and criteria and other aspects of the regulatory approach that Chapter 688 required but did not stipulate. For example, the acreage of total land that would be conserved would be determined by the conservation ratios that would be established by this regulatory action. The proposed mitigation ratios would allow developers to determine the up-front costs associated with utility scale solar projects. This reduction in uncertainty is directly attributable to the proposed regulation and would be expected to benefit the solar developers given that DEQ is charged with establishing precise mitigation measures for the lands deemed to be adversely impacted by the legislation. However, by the same token, the proposed precise mitigation ratios that result from this regulation also directly impact how much farmland, or forests developers would be required to mitigate. As noted, the economic analysis of a regulatory change compares the situation that existed before the regulation was amended to the situation that exists after the regulation is amended. This comparison is summarized in the following table.

Additional Costs	Additional Benefits
Mitigation costs or the payment of the in-lieu fee by the developers (i.e., $3,000/acre plus the administrative costs).	Conservation value of protected lands (i.e., $273.73/acre forest land, $1,558.99/acre prime agricultural soils).
Lower prices to owners of protected land if demand for protected land decreases compared to pre-regulation levels.	Other unquantified environmental benefits of conserving protected lands (e.g., ecosystem services, food security, etc.).15
Possibly higher land acquisition costs for developers to obtain un-protected land if the price is higher compared to the pre-regulation price.	Benefits to owners of un-protected land from higher prices compared to pre-regulation levels.
$800/permit increase in application costs.	Greater certainty to developers about the up-front costs of solar projects.

Although most of the effects are unquantified and there are no data to estimate the total acreage of disturbed prime lands and forests, the fact that the $3,000 easement cost per acre exceeds the conservation values ($273.73 per acre of forest lands and $1,558.99 of prime agricultural soils) suggests that regardless of the protected acreage that solar projects may disturb, the quantified compliance cost of this proposal would likely exceed the quantified benefits. (Note that this statement only addresses quantified costs and benefits, and that some of these impacts may not be quantified.) This condition would be less likely to the degree that C1 and C2 cores are involved, if their quantified conservation values exceed those of forest and farmland.

Threatened & Endangered Insects Mitigation: The current and proposed regulations both state that DEQ shall find that significant adverse impacts to wildlife are likely whenever state-listed threatened and endangered (T&E) wildlife are found to occur within the disturbance zone. However, the current regulation excludes T&E insects from the T&E wildlife definition. DEQ proposes to expand this definition by specifying that T&E insect species would also be considered T&E wildlife. Thus, the presence of T&E insects in the disturbance zone would trigger the determination that adverse impacts to wildlife are likely. Both the current and proposed regulations state that for state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts. An estimate of the cost of taking such actions for mitigation is not currently available.

Pollinator/Bird Habitat Scorecard: DEQ and the Department of Conservation and Recreation have developed a program to encourage pollinator-friendly solar energy developments throughout the Commonwealth. The program is referred to as the Virginia Pollinator-Smart Solar Industry (paraphrased hereafter as "Pollinator-Smart program"). A Pollinator-Smart solar facility is one that meets performance standards outlined in the most current release of the Virginia Pollinator Smart/Bird Habitat Scorecard (Scorecard).¹⁶ Solar sites that meet the minimum requirement of 80 points on the Scorecard are considered "Certified Virginia Pollinator-Smart," and those that score 100 or more points are considered "Gold Certified Virginia Pollinator-Smart." The majority of points on the scorecard result from planting pollinator friendly native plants. DEQ proposes to require that the applicant submit a completed scorecard with the application. The agency believes it would take approximately 45 minutes for the applicant to complete the two-page scorecard. Certification would not be required, and a low score would not prompt mitigation. DEQ believes that many applicants would seek to have a high score because it would be good for public relations. Additionally, a paper¹⁷ from Yale University Center for Business and the Environment finds that that pollinator-friendly solar may generate private benefits to solar developers. These benefits largely flow from higher energy output from panel efficiency gains attributed to the cooler microclimate created by perennial plantings. A small added benefit accrues from the lower operations and maintenance costs over the project lifetime thanks to the reduced frequency of mowing for native pollinator-friendly plants as compared to turfgrass. By requiring that the scorecard be completed, with greater possibility that developers learn about the potential benefits to their business as well as the environment, applicants may be more likely to pursue a pollinator-friendly project. The Yale study also points out that pollinator-friendly solar results in positive externalities such as more groundwater recharge and a greater reduction in soil erosion than conventional solar. Additionally, pollinator-friendly solar contributes other sizable social benefits in the form of increased crop yields when projects are sited near pollinator-dependent farmland, a reduction in the incidence of soil erosion, and an increase in the habitat needed by wildlife.

Timeframes: According to DEQ, the absence of certain timeframes within the regulation has been problematic. The agency proposes to establish several new timeframes, including adding that 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 permit-by-rule 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 DEQ-approved period between phases of a phased construction project. With large gaps in time between analyses and construction, conditions on the ground may have significantly changed and the analysis may no longer be accurate. If the authorization is deemed invalid, new fees and application documents would have to be submitted if the developer decides to pursue the project. Under the current regulation, a report of any change of ownership must be done at least 30 days prior to the change. According to the agency, the industry has indicated that it is difficult to predict ownership transactions prior to the actual date and therefore requested that the notification occur after the transaction was complete. Since DEQ has no objection to receiving the information shortly afterwards, it proposes to change the requirement to within 30 days. This would reduce the reporting burden for the applicant. Solar developers are currently required to submit post-construction site maps, but no deadline is indicated. The lack of a deadline has hindered DEQ's ability to enforce their submission, which in turn hinders DEQ's ability to ensure the use of good practices. The agency proposes to require that the post-construction site maps be submitted within six months from the beginning of operation.

Projects with Reduced Requirements: DEQ proposes to increase the maximum rated capacity under which the applicant is not required to submit any notification or certification to the department from 500 KW to one MW. According to the agency, this proposed amendment was requested by the Department of Mines, Minerals and Energy to align with the nonresidential net metering requirements. This would moderately reduce costs for projects with capacity greater than 500 KW and less than or equal to one MW.

Businesses and Other Entities Affected. The proposed regulation applies to applicants for solar projects with generation capacity up to 150 MW. Contractors and consultants for permit preparation and required analyses may be affected as well.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹⁸ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹⁹ As noted above, the most significant compliance costs are the cost of acquiring conservation easements, which Chapter 688 mandated that DEQ consider and implement. The economic impact that can be attributable to the regulation itself is mainly related to the proposals carried over from the unimplemented 2019 regulatory action that may introduce modest compliance costs in terms of mitigation actions for threatened and endangered insects, the cost of submitting the smart/bird habitat scorecard, and the cost of complying with proposed construction timeframes. With respect to those issues, an adverse impact on solar project developers is thus indicated on account of the associated discretionary requirements in this regulatory action.

Small Businesses²⁰ Affected.²¹ According to DEQ, developers of utility scale solar projects could be classified as small businesses. For developers in this category, the increased cost of legislatively mandated mitigation could potentially limit solar development in Virginia. In addition, relatively modest costs on solar developers from the discretionary changes would add to those compliance costs.

Types and Estimated Number of Small Businesses Affected: Over the 2019-2023 period, on average 13.2 solar permits were issued per year. Exactly how many of these permittees would meet the definition of a small business is not known.

Costs and Other Effects: The costs and other effects discussed are the same on small businesses, which include increased permitting costs, conservation easement costs, and relatively modest costs from the additional discretionary mitigation and streamlining proposals.

Alternative Method that Minimizes Adverse Impact: There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities²² Affected.²³ The proposed amendments would apply to solar developers, which can essentially be located in any locality. The proposal does not introduce direct costs on localities unless a locality itself chooses to develop a solar energy project, in which case the locality's costs would be similar to the costs of any other permit applicant. Additionally, there might be potential costs to a locality if a project is developed within its jurisdiction. These indirect costs could occur because of the existence of the project (with potential access or road construction issues, for example) but not because of the proposed regulation. The locality, pursuant to its land-use authority, has the power to determine whether or not a project can be located within its jurisdiction. A locality's decisions in this regard are separate from the operation of the regulations. The regulation only requires that the local government certify that the applicant has met all local land-use ordinances.

Projected Impact on Employment. The costs of mandated conservation easements plus modest costs of additional discretionary requirements may reduce the number of solar farms and by extension may also reduce the demand for labor in the construction and operation of solar farms to the extent that the proposal slows down the development of such projects. In contrast, the required mitigation actions may add to the demand for consultants for permit preparation and associated analyses, as well as the demand for labor that would be needed to facilitate private easement transactions and transactions that would be conducted by the third party that would manage and obtain easements through in-lieu fees collected.

Effects on the Use and Value of Private Property. The proposal would increase the cost of developing real estate for the purpose of creating and operating solar energy projects with rated capacity up to 150 MW. These costs would vary, depending on whether the project meets the criteria noted above, but some additional costs would be incurred for all projects such as the $800 application cost. This would likely reduce profitability and asset values of affected businesses and discourage such development. The cost of conservation easements would incentivize developers to pay more for land outside protected resources up to the cost of mitigation. Furthermore, the prime agricultural lands and forests protected by conservation easements would essentially be protected in perpetuity from other potential uses, therefore limiting the availability of protected land for any other non-solar uses.

Appendix. DEQ notes that there are no readily available estimates for the conservation values specific to protected lands and as a result uses proxies to approximate the financial contributions of agricultural and forestry sectors. DEQ also employs a methodology to use these proxies in order to calculate the conservation values. Similarly, the proposed easement cost per acre is also derived from proxy data. More specifically, DEQ has used the following specific data and methodology to estimate the conservation values for the three types of land and the per acre easement cost.

Value of conserved forest lands: The total annual financial contribution of forest products in Virginia has been estimated by the Weldon Cooper Center at $23,600,000,000.²⁴ In addition, the U.S. Forest Service estimates that there are 13,107,486 acres of privately owned forest land in Virginia.²⁵ Using these data, therefore, the annual per acre financial contribution of private forest land is approximately $1,800. The Forest Service also estimates that the total annual loss of forest land due to land use conversion is 59,782 acres. This means the probability of conversion of any acre of forest in any given year is 0.46 percent (59,782 / 13,107,486). The annual value of protecting an acre of forest land ($1,800 times 0.46 percent) equals $8.21. The present discounted value of protecting an acre of forest land in perpetuity (the annual value divided by a 3 percent discount rate) equals $273.73.

Value of conserved prime agricultural soils: The total annual financial contribution of agricultural products in Virginia has been estimated by the Weldon Cooper Center at $82,329,000,000. The U.S. National Agricultural Statistics Service (NASS) estimates that there are 7,309,687 acres of farmland in Virginia.²⁶ Using these data, therefore, the annual per acre financial contribution of agricultural land is approximately $6,281. NASS also estimates that the total annual loss of farmland due to land use conversion is 97,600 acres. This means the probability of conversion of any acre of forest in any given year is 0.74 percent. The annual value of protecting an acre of farmland (per acre financial contribution times probability of loss) equals $46.77. The present discounted value of protecting an acre of farmland in perpetuity (the annual value divided by a 3 percent discount rate) equals $1,558.99. However, the conservation value of prime agricultural lands is likely higher.

Value of conserved ecological cores: Any effort to calculate the value of preserving C1 and C2 ecological cores requires determining the value of ecosystem services and non-use values (such as biodiversity preservation). A key aspect of C1 and C2 ecological cores is that they are connected by landscape corridors and nodes to create an interconnected, statewide network of natural lands.²⁷ Although these lands have value, there are no data with which to calculate their monetary value. However, the use of these lands would disrupt the network they create, thereby affecting the overall value of these lands as wildlife corridors. The Department of Conservation and Recreation estimates that there are approximately 2,926,000 acres of C1 ecological cores and 2,288,000 acres of C2 ecological cores. DEQ does not have direct data on the rate of loss of these cores, and used the U.S. Forest Service's estimates for forests (0.46%).

Easement cost: DEQ has used 2018 - 2022 land preservation tax credit appraisals data from the Department of Taxation to determine the median appraised value of land preservation easements in ten river basins in the Commonwealth. The appraisal data was calculated by river basin because the conservation easements will be required to be located in the same river basin as the solar development requiring mitigation. These median appraised values varied between $1,593 per acre to $11,025 per acre. DEQ then calculated the median value of these medians from ten river basins to be $2,973 and rounded this number to $3,000 to establish the proposed easement cost. This minimum easement cost is the same for both the prime agricultural lands and the forests, because DEQ states that there was no statistically significant difference in the estimated values.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://lis.virginia.gov/cgi-bin/legp604.exe?221+ful+CHAP0688.

³ The 2012 promulgation of this regulation was mandated by Chapters 808 and 854 of the 2009 Acts of Assembly that provided permitting authority to DEQ for solar-energy projects with rated capacity not exceeding 100 megawatts in addition to the State Corporation Commission (SCC). Currently, both DEQ and SCC have permitting authority for such projects.

⁴ A permit-by-rule means that permit requirements are set forth up front in the regulation and if the applicant meets those requirements, a permit is automatically issued, rather than being issued on a case-by-case basis; thereby reducing uncertainty about the outcome and requirements of an application compared to a regular permit.

⁵ According to DEQ and anecdotally, roughly one MW of electricity generation requires a solar farm size of about 10 acres.

⁶ Chapter 688 defines "prime agricultural soils" as soils recognized as prime farmland by the U.S. Department of Agriculture and "forest land" as having the same meaning as set forth in § 10.1-1178, which is the land on which forest trees are found.

⁷ "C1 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Outstanding category (C1) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment. "C2 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Very High category (C2) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment.

⁸ "Conservation easement" means a perpetual easement complying with the proposed requirements of 9VAC15-60-60 G.

⁹ https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5216.

¹⁰ A Study of Small Renewable Energy Projects: Impact on Natural Resources - HB 206 December 1, 2022 (virginia.gov)

¹¹ Source: DEQ

¹² See the Office of Regulatory Management Economic Review Form, page 3, at https://townhall.virginia.gov/l/GetFile.cfm?File=53\6246\10341\ORM_EconomicImpact_DEQ_10341_v1.pdf.

¹³ Ibid, pp. 3-4.

¹⁴ See page 350 of https://rga.lis.virginia.gov/Published/2022/RD773/PDF, and page 23 of https://scholarscompass.vcu.edu/cgi/viewcontent.cgi?article=1043&context=murp_capstone.

¹⁵ See page 7, https://www.cdfa.ca.gov/EnvironmentalStewardship/pdfs/Farmland-Conservation-in-California.pdf.

¹⁶ See https://www.dcr.virginia.gov/natural-heritage/pollinator-smart for details.

¹⁷ See https://cbey.yale.edu/research/maximizing-land-use-benefits-from-utility-scale-solar.

¹⁸ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹⁹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

²⁰ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

²¹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

²² "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

²³ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

²⁴ https://www.vdacs.virginia.gov/pdf/weldoncooper.pdf.

²⁵ https://dof.virginia.gov/wp-content/uploads/USDA-FS-FS-395-Forests-of-VA-2020.pdf.

²⁶ https://www.nass.usda.gov/Publications/AgCensus/2022/Full_Report/Volume_1,_Chapter_1 _State_Level/Virginia/.

²⁷ https://www.dcr.virginia.gov/natural-heritage/vaconvisvnla.

Agency's Response to Economic Impact Analysis: The Department of Environmental Quality has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Pursuant to Chapter 688 of the 2022 Acts of Assembly, the proposed amendments (i) add and clarify definitions; (ii) add prime agricultural soils and forest lands to the existing requirement for the analysis of the beneficial and adverse impacts to natural resources; (iii) add mitigation plan requirements for prime agricultural soils and forest lands; (iv) clarify the timeframe for submitting a notice of intent; (v) clarify that avoidance mitigation as it relates to cemeteries is required to ensure consistency with state law; (vi) clarify requirements for site plans and public participation requirements; (vii) specify the operation, recordkeeping, and reporting requirements; (viii) clarify which sizes of projects are exempt from permitting and the procedures for modification or transfer of ownership of a permitted facility; (ix) incorporate other provisions previously identified in the 2019 solar permit by rule amendments, excluding fees; and (x) improve overall regulatory structure, procedures, and use.

9VAC15-60-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active cropping including hayland" means annual management of disturbed areas for row crops or cut hay, including at least one row crop harvest or two hay cuttings per year for the lifetime of project. Row crops shall use approved conservation tillage practices.

"Administratively complete application" means an application the department has determined meets the requirements of this chapter.

"Applicant" means the developer, owner, or operator who that submits an application to the department for a permit by rule pursuant to this chapter.

"Archive search" means a search of DHR's cultural resource inventory for the presence of previously recorded archaeological sites and for architectural structures and districts.

"Brownfield" means real property; the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant as defined in § 10.1-1230 of the Code of Virginia.

"C1 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Outstanding category (C1) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment.

"C2 forest core" means forest land with at least 100 acres of continuous interior natural habitat that has been mapped in the Very High category (C2) by the Department of Conservation and Recreation in the Virginia Natural Landscape Assessment.

"Coastal Avian Protection Zones" or "CAPZ" means the areas designated on the map of "Coastal Avian Protection Zones" generated on the department's Coastal GEMS geospatial data system (9VAC15-60-120 C 1).

"Commencement of commercial operation" means the date when the project has commenced to generate electricity for sale, excluding the sale of test generation.

"Concentrating photovoltaics" or "CPV" means PV systems with equipment to focus or direct sunlight on the PV cells. For purposes of this chapter, CPV is included in the definition of PV.

"Conservation easement" means a perpetual easement complying with the requirements of 9VAC15-60-60 G.

"Conserved land" means land subject to a conservation easement in accordance with 9VAC15-60-60 G.

"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.

"Department" or "DEQ" means the Department of Environmental Quality, its director, or the director's designee.

"DCR" means the Department of Conservation and Recreation.

"DGIF" means the Department of Game and Inland Fisheries.

"DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard" means the assessment tool used to establish target conditions for pollinator-friendly habitat.

"DHR" means the Department of Historic Resources.

"Disturb" means to act in such a way as to create land disturbance.

"Disturbance zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small solar energy project and within 100 feet of from the boundary of the directly impacted area. For purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the disturbance zone shall include the panel zones, open areas, and screening zones of the project.

"Document certification" means the statement as prescribed in 9VAC15-60-30 B 2 a, signed by the responsible person and submitted with the application documents or any supplemental information submitted to the department for a PBR.

"DOF" means the Department of Forestry.

"DWR" means the Department of Wildlife Resources.

"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 30% of the disturbed area claimed for this credit.

"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.

"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.

"Integrated PV" means photovoltaics incorporated into building materials, such as shingles.

"Interconnection point" means the point or points where the solar energy project connects to a project substation for transmission to the electrical grid.

"Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land.

"Managed grazing" means active grazing by sheep or other livestock for the project lifetime, using appropriate management (e.g., rotational grazing), and maintaining greater than 75% living vegetative cover.

"Megawatt" or "MW" means a measurement of power; 1,000 kilowatts equals one MW.

"Mitigation district" means each river watershed as defined in § 33.2-247 of the Code of Virginia, including the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and New River Basin with the following exceptions: the Atlantic Ocean is combined with the Chesapeake Bay and its Small Coastal Basins east of the Chesapeake Bay and labeled "Eastern Shore," the Chesapeake Bay and its Small Coastal Basins west of the Chesapeake Bay is combined with adjacent major river basins, and the James River Basin has been divided into upper, middle, and lower basins.

"Mitigation ratio" means the ratio of the area conserved to the area disturbed. For example, a ratio of one to two would require one-half acre conserved for each acre of disturbance.

"Mitigation zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small solar energy project.

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species,; rare or state significant state-significant natural communities or geologic sites,; and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth as defined in § 10.1-209 of the Code of Virginia.

"Notice of intent" or "NOI" means notification, in a manner acceptable to the department, by an applicant stating intent to submit documentation for a permit under this chapter.

"Open area" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, any area beyond the panel zone within the site boundary of a project.

"Operator" means the person responsible for the overall operation and management of a solar energy project.

"Other solar technologies" means materials or devices or methodologies of producing electricity from sunlight other than PV or CPV.

"Owner" means the person who that owns all or a portion of has all of a controlling interest in a solar energy project.

"Panel zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, the area underneath the solar arrays, including inter-row spacing within a disturbance zone.

"Parking lot" means an improved area, usually divided into individual spaces and covered with pavement or gravel, intended for the parking of motor vehicles.

"Permit by rule," "PBR," or "permit" means provisions of the regulations this chapter stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.

"Phase I archaeological survey" means systematic identification-level archaeological investigations as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) within the project area and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Phase I architectural survey" means comprehensive, reconnaissance-level documentation as described in DHR's Guidelines for Conducting Historic Resources Survey in Virginia (2017) of all standing buildings or structures 50 years of age or older within the project area and surrounding areas with a view to the project and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Photovoltaic" or "PV" means materials and devices that absorb sunlight and convert it directly into electricity by semiconductors.

"Photovoltaic cell" or "PV cell" means a solid state device that converts sunlight directly into electricity. PV cells may be connected together to form PV modules, which in turn may be combined and connected to form PV arrays (often called PV panels).

"Photovoltaic system" or "PV system" means PV cells, which may be connected into one or more PV modules or arrays, including any appurtenant wiring, electric connections, mounting hardware, power-conditioning equipment (inverter), and storage batteries.

"Preconstruction" means any time prior to commencing land-clearing operations during related approval processes occurring prior to beginning land-disturbing activities necessary for the installation of energy-generating structures at the small solar energy project.

"Previously disturbed or repurposed areas" means the land area within the property boundary of industrial or commercial properties, including brownfields or previously mined areas. It does not include active or fallow agricultural land or silvicultural land use.

"Prime agricultural soils" means soils recognized as prime farmland by the U.S. Department of Agriculture. Prime agricultural soils are further defined in 7 CFR 657.5(a)(2) (January 1, 2024).

"Project" refers to all aspects of small solar energy facility development, including planning, permitting, construction, commissioning, and decommissioning.

"Rated capacity" means the maximum capacity of a solar energy project based on Photovoltaic USA Test Conditions (PVUSA Test Conditions) rating, measured in MW.

"Responsible person" means (i) for a corporation or limited liability company, a president, secretary, treasurer, or vice-president in charge of a principal business function or any other person that performs similar policy or decision-making functions for the corporation or limited liability company; (ii) for a partnership or sole proprietorship, a general partner or the proprietor, respectively; and (iii) for a local government entity or state, federal, or other public agency, either a principal executive officer or ranking elected official.

"Riparian forest buffer" means a woodland riparian buffer preserved or installed and maintained around a waterbody with perennial flow. The riparian buffer shall be a minimum width of 35 feet as measured from the top of the channel bank to the edge of the mitigation zone, cropland, hayland, or pasture and in accordance with DCR Specifications for NO. FR-3 or DCR Specifications for NO. WQ-1 contained in the Virginia Agricultural BMP Cost-Share Manual.

"Screening zone" means, for purposes of the DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard, a vegetated visual barrier.

"Site" means the area containing of a solar energy project that is under common ownership or operating control. Electrical infrastructure and other appurtenant structures up to the interconnection point shall be considered to be within the site.

"Small renewable energy project" means (i) an electrical generation facility with a rated capacity not exceeding 150 megawatts MW that generates electricity only from sunlight or wind; (ii) an electrical generation facility with a rated capacity not exceeding 100 megawatts MW that generates electricity only from falling water, wave motion, tides, or geothermal power; or (iii) an electrical generation facility with a rated capacity not exceeding 20 megawatts MW that generates electricity only from biomass, energy from waste, or municipal solid waste; (iv) an energy storage facility that uses electrochemical cells to convert chemical energy with a rated capacity not exceeding 150 MW; or (v) a hybrid project composed of an electrical generation facility that meets the parameters established in clause (i), (ii), or (iii) of this definition and an energy storage facility that meets the parameters established in clause (iv) of this definition.

"Small solar energy project," "solar energy project," or "project" means a small renewable energy project that (i) generates electricity from sunlight, consisting of one or more PV systems and other appurtenant structures and facilities within the boundaries of the site; and (ii) is designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts MW. Two or more solar energy projects otherwise spatially separated but under common ownership or operational control, which are connected to the electrical grid under a single interconnection agreement, shall be considered a single solar energy project. Nothing in this definition shall imply that a permit by rule is required for the construction of test structures to determine the appropriateness of a site for the development of a solar energy project.

"Threatened and endangered," "T&E," "state threatened or endangered species," or "state-listed species" means (i) any wildlife species designated as a Virginia endangered or threatened species by DGIF DWR pursuant to the §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130 or (ii) any species designated as a Virginia endangered or threatened species by VDACS pursuant to Chapter 11 (§ 3.2-1000 et seq.) of Title 3.2 of the Code of Virginia and 2VAC5-320-10.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

"Virginia Natural Landscape Assessment Ecological Cores" means large patches of natural land with at least 100 contiguous acres of interior, which begins 100 meters inward from the nearest edge between natural and unnatural land covers identified by the Virginia Natural Landscape Assessment performed by the Virginia Natural Heritage Program within DCR.

"VLR" means the Virginia Landmarks Register (9VAC15-60-120 B 1).

"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in VLR.

"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.

"Wildlife" means wild animals; except, however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.

9VAC15-60-20. Authority and applicability Applicability.

A. This regulation is issued under authority of Article 5 (§ 10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia. The regulation contains requirements for solar-powered electric generation projects consisting of PV systems and associated facilities with a single interconnection to the electrical grid that are designed for, or capable of, operation at a rated capacity equal to or less than 150 megawatts.

B. A. The department has determined that a permit by rule is required for small solar energy projects with a rated capacity greater than five megawatts MW and a disturbance zone greater than 10 acres, provided that the projects do not otherwise meet the criteria for Part III (9VAC15-60-130) of this chapter, and this regulation contains the. The permit by rule provisions for these projects are contained in Part II (9VAC15-60-30 et seq.) of this chapter.

C. B. The department has determined that different provisions should apply to projects that meet the criteria as set forth in Part III (9VAC15-60-130) of this chapter, and this regulation contains the. The requirements, if any, for these projects are contained in Part III (9VAC15-60-130 A and B) of this chapter. Projects that meet the criteria for Part III of this chapter are deemed to be covered by the permit by rule.

D. C. The department has determined that small renewable energy projects utilizing other solar technologies shall fulfill all of the requirements in 9VAC15-40 as prescribed for small wind energy projects, unless (i) the owner or operator of the proposed project presents to the department information indicating that the other solar technology presents no greater likelihood of significant adverse impacts to natural resources than does PV technology and (ii) the department determines that it is appropriate for the proposed project utilizing the other solar technology to meet the requirements of this chapter or of some modification to either 9VAC15-40 or this chapter, as prescribed by the department for that particular project.

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.

A. The owner or operator of application for a small solar energy project with a rated capacity greater than five megawatts MW and a disturbance zone greater than 10 acres, provided that the project does not otherwise meet the criteria for Part III (9VAC15-60-130 A or B) of this chapter, shall submit to the department a complete application in which he satisfactorily accomplishes contain all of the following:

1. In accordance with § 10.1-1197.6 B 1 of the Code of Virginia, and as early in the project development process as practicable, furnishes to the department a notice of intent, to be published in the Virginia Register, that he intends to submit the necessary documentation for a permit by rule for a small renewable energy project; 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 shall be submitted to the department as early in the project development process as practicable, but at least 90 days prior to the start of the public comment period required under 9VAC15-60-90.

(2) The NOI shall be submitted to the chief administrative officer and chief elected official of the locality in which the project is proposed to be located at the same time the NOI is submitted to the department.

b. Any NOI submitted after the effective date of this regulation shall expire if no application has been submitted within 48 months from the NOI submittal date, unless the department receives a written request for extension prior to the NOI expiration date. An NOI extension may be granted for an additional 36 months, at which time the NOI shall expire.

c. 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.

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.

(1) The original applicant shall notify the department of the change by withdrawing the initial NOI in a format acceptable to the department.

(2) The new applicant shall submit an NOI in a format acceptable to the department.

(3) The department will not consider the change of operator, ownership, or controlling interest for a project effective until the department receives notification from both the original applicant and the new applicant.

2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a 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).

3. In accordance with § 10.1-1197.6 B 3 of the Code of Virginia, furnishes to the department copies Copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the small renewable energy project;.

4. In accordance with § 10.1-1197.6 B 4 of the Code of Virginia, furnishes to the department a A copy of the final interconnection agreement between the small renewable energy project and the regional transmission organization or transmission owner indicating that the connection of the small renewable energy project will not cause a reliability problem for the system. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section. When a final interconnection agreement is complete, it shall be provided to the department. The department shall forward a copy of the agreement or study to the State Corporation Commission;

a. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section.

b. The final agreement shall be provided to the department within 30 days of the date of execution.

c. The department shall forward a copy of the agreement or study to the State Corporation Commission.

5. In accordance with § 10.1-1197.6 B 5 of the Code of Virginia, furnishes to the department a A certification signed and stamped by a professional engineer licensed in Virginia that the maximum generation capacity of the small solar energy project, as designed, does not exceed 150 megawatts; MW.

6. In accordance with § 10.1-1197.6 B 6 of the Code of Virginia, furnishes to the department an An analysis of potential environmental impacts of the small renewable energy project's operations on attainment of national ambient air quality standards; (42 USC § 7409 as implemented by 9VAC5-30).

7. In accordance with § 10.1-1197.6 B 7 of the Code of Virginia, furnishes to the department, where relevant, an An analysis of the beneficial and adverse impacts of the proposed project on natural and historic resources. The owner or operator shall perform the analyses prescribed in pursuant to 9VAC15-60-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months;.

8. In accordance with § 10.1-1197.6 B 8 of the Code of Virginia, furnishes to the department a A mitigation plan pursuant to 9VAC15-60-60 that details 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; provided, however, that the provisions of this subdivision shall only be required if the department determines, pursuant to 9VAC15-60-50, that the information collected pursuant to § 10.1-1197.6 B 7 of the Code of Virginia and 9VAC15-60-40 indicates that significant adverse impacts to wildlife or historic resources are likely. The mitigation plan shall be an addendum to the operating plan of the solar energy project, and the owner or operator shall implement the mitigation plan as deemed complete and adequate by the department. The mitigation plan shall be an enforceable part of the permit by rule; if a determination of likely significant adverse impacts has been made according to 9VAC15-60-50. The plan shall detail actions necessary to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions.

9. In accordance with § 10.1-1197.6 B 9 of the Code of Virginia, furnishes to the department a A certification signed and stamped by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-60-80;.

10. In accordance with § 10.1-1197.6 B 10 of the Code of Virginia, furnishes to the department an An operating plan that includes a description of how the project will be operated in compliance with its mitigation plan, if such a mitigation plan is required pursuant to 9VAC15-60-50; and any mitigation plan required due to findings under 9VAC15-60-50.

11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a A detailed site plan and context map meeting the requirements of 9VAC15-60-70;.

12. In accordance with § 10.1-1197.6 B 12 of the Code of Virginia, furnishes to the department a A certification signed by the applicant that the small solar energy project department has been notified that the applicant intends to apply for or has applied for or obtained all necessary environmental permits; for the project.

13. In accordance with § 10.1-1197.6 H and I of the Code of Virginia, furnishes to the department a A certification signed by the applicant that the small solar energy project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia or provides certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause, or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia;.

14. Prior to authorization of the project and in accordance with § 10.1-1197.6 B 13 and B 14 of the Code of Virginia, conducts a A summary report of the 30-day public review and comment period and holds a public meeting conducted pursuant to 9VAC15-60-90. The public meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project. Following the public meeting and public comment period, the applicant shall prepare a report summarizing, including a summary of the issues raised by the public and include, any written comments received, and the applicant's response to those comments. The report shall be provided to the department as part of this application; and

15. In accordance with 9VAC15-60-110, furnishes to the department the The appropriate fee fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

B. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department shall determine, after consultation with other agencies in the Secretariat of Natural and Historic Resources, whether the application is complete and whether it adequately meets the requirements of this chapter pursuant to § 10.1-1197.7 A of the Code of Virginia. An applicant seeking a PBR under this part shall submit the following:

1. All items identified in subsection A of this section submitted in a format acceptable to the department and all applicable fees pursuant to 9VAC15-60-110, exclusive of in-lieu fees pursuant to 9VAC15-60-60.

2. A cover letter submitted with the application that contains the following:

a. Document certification signed by a responsible person that contains the following statement:

"I certify under penalty of law that this application document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there may be significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

b. The name and contact information of the responsible person signing the document certification required under subdivision 2 a of this subsection; and

c. The name and contact information of the responsible person to receive the permit authorization.

C. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department will, after consultation with DCR, DHR, DOF, DWR, and VDACS, form a determination that an application is an administratively complete application or incomplete.

1. If the department determines that the application meets the requirements of this chapter, then the department shall notify the applicant in writing that he is authorized to construct and operate a small solar energy project pursuant to this chapter will form a determination that an application is an administratively complete application and notify the responsible person in writing that the person is authorized to construct and operate the facility pursuant to this chapter.

a. 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.

b. The department may grant an extension on a case-by-case basis.

c. The applicant for any project for which the PBR or modification authorization has been deemed invalid shall submit a new NOI, application documents, and appropriate fees to reactivate authorization.

2. If the department determines that the application does not meet the requirements of this chapter, then the department shall notify the applicant in writing and specify the deficiencies will form a determination that an application is incomplete, notify the applicant in writing, and specify the deficiencies.

3. If the applicant chooses to correct deficiencies in a previously submitted an incomplete application, the department shall follow the procedures of this subsection and notify the applicant whether the revised application meets the requirements of this chapter within 60 days of receiving the revised application (i) the applicant shall notify the department within 30 days of an incomplete notification, (ii) the department will follow the procedures of this subsection, and (iii) the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter.

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.

5. The applicant may correct deficiencies in an application by submitting supplemental information, in which case the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter. If the applicant fails to submit necessary supplemental information within 90 days of the date the department provided notice of the deficiencies or within such additional time as the applicant requests and the department approves, the application shall be deemed withdrawn.

6. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC15-60-40. Analysis of the beneficial and adverse impacts on natural and historic resources.

A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following:

1. Desktop surveys and maps. The applicant shall obtain a wildlife report and map generated from DGIF's DWR's Virginia Fish and Wildlife Information Service web-based application (9VAC15-60-120 C 3) or from a data and mapping system including the most recent data available from DGIF's DWR's subscriber-based Wildlife Environmental Review Map Service of the following: (i) known wildlife species and habitat features on the site or within two miles of the boundary of the site and, (ii) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone, and (iii) desktop information for bald eagle nesting locations from the Center for Conservation Biology at the College of William and Mary.

2. Desktop map for avian resources in Coastal Avian Protection Zones (CAPZ). The applicant shall consult the "Coastal Avian Protection Zones" map generated on the department's Coastal GEMS geospatial data system (9VAC15-60-120 C 1) and determine whether the proposed solar energy project site will be located in part or in whole within one or more CAPZ.

B. Analyses of historic resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall also conduct perform a preconstruction historic resources analysis. The analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-60-120 B 2) in the appropriate discipline. The analysis shall include each of the following:

1. Compilation of known historic resources. The applicant shall gather information Information on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary and present this information identified on the context map referenced in 9VAC15-60-70 B, or as an overlay to this context map, as well as in tabular format.

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.

3. Archaeological survey. The applicant shall conduct an A Phase I archaeological field survey of the disturbance zone and evaluate an evaluation of the potential eligibility of any identified archaeological site for listing in the VLR. As an alternative to performing this archaeological survey, the applicant may make a demonstration to the department that the project will utilize nonpenetrating footings technology and that any necessary grading of the site prior to construction does not have the potential to adversely impact any archaeological resource. To streamline archaeological investigations, the survey may execute research design that utilizes probability-based sampling guided by predictive modelling. Such a research design shall be approved by DEQ and DHR for use in the project prior to conducting the fieldwork.

C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the The applicant shall also conduct a preconstruction desktop survey of natural heritage resources within the disturbance zone. D. Summary report. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subsections A, B, and C of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife and historic resources identified by these studies and analyses. and Virginia Natural Landscape Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal. The analyses shall include the following:

1. A report of natural heritage resources using either the DCR online information service order form or the DCR subscriber-based Natural Heritage Data Explorer web application and include the most recent data available of the following:

a. Documented occurrences of natural heritage resources within the disturbance zone;

b. Intersection of the site with predicted suitable habitat (PSH) models developed by DCR for rare, threatened, and endangered species;

c. Intersection of the site with the Virginia Natural Landscape Assessment Ecological Cores; and

d. Onsite surveys for natural heritage resources recommended by DCR based on the analysis required under this subsection; and

2. A completed DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard.

D. The applicant shall conduct preconstruction mapping of prime agricultural soils on the site. The mapping of prime agricultural soils shall include the following:

1. The applicant shall use the U.S Department of Agriculture Natural Resources Conservation Service Web Soil Survey (Web Soil Survey) to map prime agricultural soils on the site. If the farmland classification of the soil map unit is "All areas are prime farmland," it shall be considered prime agricultural soils.

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.

3. The applicant shall tabulate the total area in acres of prime agricultural soils to be disturbed by the project.

E. The applicant shall conduct preconstruction mapping of forest land on the site. The mapping of forest land shall include the following:

1. All forest land within the boundaries of the site;

2. Areas of the site 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); and

3. Tabulation of the total area in acres of (i) contiguous forest land to be disturbed by the project and (ii) forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia to be disturbed by the project.

F. The applicant shall provide to the department a report presenting the findings of the studies and analyses conducted pursuant to subsections A, B, C, D, and E of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife, historic resources, natural heritage resources, prime agricultural soils, and forest lands identified by these studies and analyses.

9VAC15-60-50. Determination of likely significant adverse impacts.

A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-60-40 A document that any of the following conditions exists:

1. State-listed T&E wildlife are found to occur within the disturbance zone or the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach.

2. The disturbance zone is located in part or in whole within zones zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map.

B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-60-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

C. The department will find that significant adverse impacts to natural heritage resources and ecological cores are likely whenever the analysis prescribed by 9VAC15-60-40 C indicates that impacts to natural heritage resources or Virginia Natural Landscape Assessment Ecological Cores with a Conservation Rank of C1 or C2 will occur within the disturbance zone as verified by a site visit. No mitigation will be required solely as a result of predicted suitable habitat (PSH) models.

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

E. A project shall be deemed to have a significant adverse impact if it would disturb more than 50 acres of contiguous forest lands or if it would disturb forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia.

9VAC15-60-60. Mitigation plan.

A. If the department determines that significant adverse impacts to wildlife or historic resources or both are likely, then the applicant shall prepare a mitigation plan. The applicant shall prepare a mitigation plan for any resource for which a significant adverse impact determination has been made as a result of the analyses pursuant to 9VAC15-60-40. The plan shall detail actions by the applicant to avoid, minimize, or otherwise mitigate such impacts and shall be an enforceable part of the PBR. Mitigation included in a siting agreement and approved by a local governing body pursuant to subsection B of § 15.2-2316.7 of the Code of Virginia or zoning use conditions approved by the locality pursuant to § 15.2-2288.8 of the Code of Virginia may satisfy the mitigation obligations required for the PBR if (i) the local requirements conform to the regulations established by DEQ and (ii) the local requirement is incorporated as a specific condition of the PBR approval.

B. Mitigation measures for significant adverse impacts to wildlife shall include the following:

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-60-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided, and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 through October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 through August 31) and one mile beyond the northern and southern reaches of the disturbance zone (hereinafter "sea turtle nest survey zone") between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and nonnesting emergences.

b. If construction is scheduled during the nesting season, then including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings. Proposed project lighting shall be submitted to DWR and the U.S. Fish and Wildlife Service for approval prior to construction.

3. For projects located in part or in whole within zones zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map, contribute $1,000.00 $1,000 per megawatt MW of rated capacity, or partial megawatt MW thereof, to a fund designated by the department in support of scientific research investigating or minimizing the impacts of projects in CAPZ on avian resources. Payment of mitigation fee is due at the time of application submittal.

C. Mitigation measures for significant adverse impacts to historic resources shall include the following:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the solar energy project or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will shall be mitigated through archaeological data recovery approved by DHR and DEQ.

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.

E. Mitigation measures for significant adverse impacts to prime agricultural soils shall include the following:

1. For prime agricultural soils disturbed by the project, the applicant shall provide mitigation by a conservation easement for land containing prime agricultural soils within the mitigation district at a mitigation ratio of one to one.

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.

3. Actions to preserve prime agricultural soils on the project site shall be counted as partial mitigation per Table 1.

Table 1 Partial Mitigation Options to Preserve Prime Agricultural Soils
Mitigation Option	Mitigation Actions Required	Mitigation Ratio
Option 1: No Change in Grade	Areas with no change in grade or topsoil removal, no trenching, maintenance of > 75% living vegetative cover, and decompaction to > 6" after decommissioning.	1:10
Option 2: Preservation of Topsoil	Areas with changes in grade due to cut and fill with removal and return of topsoil, decompaction of topsoil and subsoil following installation, maintenance of > 75% living vegetative cover for project lifetime, and decompaction to > 24" and surface soil amendment after decommissioning.	1:4
Option 3: Decompaction of Surface Soil on Cut/Fill Areas	Areas with changes in grade due to cut and fill without topsoil salvage and return, decompaction of surface soil following installation, maintenance of > 75% living vegetative cover for project lifetime, and surface soil decompaction and soil amendment to > 6" after decommissioning.	1:2

Preserving soil on site shall reduce but not eliminate the requirement for an easement or in-lieu fee.

4. Implementation of a plan to maintain any of the following management alternatives in combination with onsite soil mitigation pursuant to subdivision 3 of this subsection shall decrease the required area of off-site conservation easement by 25%: managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation, including certification and monitoring in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. The plan shall be submitted with the application and approved by the department.

5. If a project is deemed to have a significant adverse impact, that is, disturb more than 10 acres of prime agricultural soils, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 11 acres of prime agricultural soils shall require mitigation for 11 acres, not one acre.

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.

7. An applicant may propose innovative alternatives to the required mitigation. An example could include restoration of a degraded site to restore the characteristics of prime agricultural soils. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

F. Mitigation measures for significant adverse impacts to forest land shall include the following:

1. For contiguous forest land or forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia disturbed by the project, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one.

2. The ratio of land required in the conservation easement may be reduced by providing land containing existing riparian forest buffers within the easement. For riparian forest buffers the mitigation ratio shall be reduced to one to two. Such 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.

3. If a project shall be deemed to have a significant adverse impact, that is, disturb more than 50 acres of contiguous forest land, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 51 acres of contiguous forest land shall require mitigation for 51 acres, not one acre.

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.

G. The requirements for any conservation easements required by this section shall include the following:

1. The applicant shall submit with the PBR application a plan to obtain any easements necessary to provide the required mitigation. The plan shall include:

a. Identification of the proposed conserved land, provided the area of conserved land may be increased or decreased subsequent to submission of the plan as needed to meet the mitigation ratios approved with the application;

b. The current use of the proposed conserved land;

c. The identity of the proposed grantor and holder of any easements;

d. A brief description of the agreements with the proposed grantor and holder; and

e. A title report confirming the ownership of the conserved land and the existence of any liens, encumbrances, or restrictions.

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.

3. The holder of the easement shall be either (i) a holder in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) that is accredited by the Land Trust Accreditation Commission or its designated subsidiary entity or (ii) a public body in accordance with the Open-Space Land Act (§ 10.1-1700 et seq. of the Code of Virginia).

4. A conservation easement shall contain a third-party right of enforcement as defined in § 10.1-1009 of the Code of Virginia granted to the department.

5. 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.

6. No land shall count for purposes of mitigation that is already subject to an easement or deed restriction restricting development. However, land that is restricted by an easement acquired for the purpose of mitigating solar development as part of a banking arrangement or advance purchase and is not subject to another quid pro quo, such as a tax credit, may be counted for mitigation. Land that is not counted for mitigation may still be included in a conservation easement.

7. Every conservation easement for prime agricultural soils shall allow agricultural activities on the conserved land. Every conservation easement for forest land shall allow silvicultural activities on the conserved land. Every conservation easement for C1 or C2 forest cores shall restrict disturbance of the conserved land.

8. 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.

9. Within 30 days of closing on any easement, the applicant shall submit to the department copies of the easement and related surveys and baseline reports required by the holder.

H. As an alternative to providing a conservation easement, an applicant may pay an in-lieu fee calculated as follows:

1. The in-lieu fee for mitigation will be determined by the department by adding the projected administrative costs, including agency staff time, legal fees, due diligence costs, stewardship fees paid to the holder, and other associated fees, to the predicted cost of a perpetual easement necessary to protect the required acreage of land. The predicted cost of a perpetual easement shall be equal to the greater of (i) $3,000 per acre adjusted annually by the percent change (2024 base year) in Virginia cropland value determined by the USDA National Agricultural Statistics Service or (ii) the difference between the most recent assessed use value per acre of forest or agricultural land, as applicable, and the full assessed value per acre of the land affected by the solar project prior to reassessment as a solar use. The applicant shall provide the department evidence of the assessed values from the local assessor. In the event the jurisdiction where the project is proposed does not participate in use-value assessment, the applicant may provide a calculation of the use value provided by the Virginia State Land Evaluation Advisory Council.

2. The department will select a trustee to administer the in-lieu fees in trust with the purpose of acquiring conservation easements consistent with the acreage and location of the mitigation requirements.

3. The in-lieu fee shall be paid to the trustee prior to beginning construction as directed by the department at the time of issuance of the PBR. The trustee shall pay the administrative costs of the department for the in-lieu fee program from the in-lieu fees received.

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

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show, for project review, may include multiple pages, and shall include, the following: (i) the boundaries of the site; (ii) the location, height, and dimensions of all existing and proposed PV systems, other structures, fencing, and other infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels.

1. Boundaries of the site, disturbance zone, including 100-foot buffer, mitigation zone, areas of solar panels, open areas, and screening areas;

2. Prime agricultural soils;

3. Contiguous forest lands and lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia;

4. A tabulation of all the areas enumerated in subdivisions 1, 2, and 3 of this subsection;

5. Location, height, and dimensions of all existing and proposed PV systems, other structures, fencing, and other infrastructure;

6. Location, grades, and dimensions of all temporary and permanent onsite and access roads from the nearest county or state-maintained road;

7. Waterbodies, waterways, wetlands, and drainage channels;

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

9. Location of any cemetery subject to protection from damage pursuant to § 18.2-127 of the Code of Virginia; and

10. Location of any mitigation measures and resources subject to mitigation.

B. The applicant shall submit a context map including the area encompassed by the site and within five miles of the site boundary. The context map shall show state and federal resource lands and other protected areas, Coastal Avian Protection Zones, Chesapeake Bay Resource Protection Areas pursuant to 9VAC25-830-80, historic resources, state roads, waterways, locality boundaries, forests, open spaces, farmland, brownfield sites, and transmission and substation infrastructure.

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.

D. The applicant shall submit as-built post-construction site plans to the department within six months after commencement of commercial operation that show the physical features, topography, and land cover of the area within the site. The plans shall contain the following:

1. The boundaries of the site, disturbance zone with 100-foot buffer identified, open areas, and screening areas;

2. Panel placement;

3. Mitigation required pursuant to 9VAC15-60-60, as applicable; and

4. Location of any avoided cultural resources as a result of project design.

E. All site plans submitted pursuant to this section shall be accompanied by digital files containing the information in a geographic information system (GIS) file format.

9VAC15-60-80. Small solar energy project design standards and operational plans.

A. The design and installation of the small solar energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation if a mitigation plan is required pursuant to 9VAC15-60-50 or 9VAC15-60-60, as applicable.

B. The applicant shall prepare an operation plan detailing operational parameters for the project, including (i) remote monitoring or staffing requirements, (ii) emergency procedures and contacts, (iii) vegetation to be used within the disturbance zone, and (iv) application frequency of herbicides over the life of the project.

9VAC15-60-90. Public participation.

A. Before the initiation of any construction at the small solar energy project, the applicant shall comply with this section. The owner or operator shall first publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation informing the public that he intends to construct and operate a project eligible for a permit by rule. No later than the date of newspaper publication of the initial notice, the owner or operator shall submit to the department a copy of the notice along with electronic copies of all documents that the applicant plans to submit in support of the application. The notice shall include: The applicant shall conduct a public comment period for public review of all application documents required by 9VAC15-60-30 and include a summary report of the public comment as part of the PBR application. The report shall include documentation of the public comment period and public meeting and include a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

B. The applicant shall publish a notice announcing a 30-day comment period. The notice shall be published once a week for two consecutive weeks in a local newspaper of general circulation. The notice shall include the following:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of PV systems, and approximate maximum height of PV systems;

2. A statement that the purpose of the public participation is to (i) acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will shall be met, (ii) identify issues of concern, (iii) facilitate communication, and (iv) establish a dialogue between the owner or operator and persons who may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection C D of this section, and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection D E of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will shall be available for inspection.

B. C. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

C. D. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

D. E. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality, or, if the project is located in more than one locality, in a place proximate to the location of the proposed project.

E. F. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.

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

A. Change of ownership. A permit by rule A PBR may be transferred to a new owner or operator if through an administrative amendment to the permit. The department will incorporate the administrative changes to the PBR after receipt of the following:

1. The current owner or operator notifies the department at least 30 days in advance of the transfer date by submittal of a notice per subdivision 2 of this subsection Notification of the change in a format acceptable to the department;

2. The notice shall include a written agreement between the existing and new the majority or plurality owner or operator containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

3. The transfer of the permit by rule to the new owner or operator shall be effective on the date specified in the agreement described in subdivision 2 of this subsection; and

4. Information required for a change of ownership shall be submitted to the department within 30 days of the transfer date.

The department will not consider the change of operator, ownership, or controlling interest for a project to be effective until the department receives notification from both the original applicant and the new applicant.

B. Project modifications. Provided project modifications are in accordance with the requirements of this permit by rule and do not increase the rated capacity of the small solar energy project, the owner or operator of a project authorized under a permit by rule may modify its design or operation or both by furnishing to the department new certificates prepared by a professional engineer, new documentation required under 9VAC15-60-30, and the appropriate fee in accordance with 9VAC15-60-110. The department shall review the received modification submittal in accordance with the provisions of subsection B of 9VAC15-60-30. A PBR name may be changed through an administrative amendment to the permit. Notification information shall be submitted in a format acceptable to the department.

C. Permit by rule termination. The department may terminate the permit by rule whenever the department finds that: 1. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter; or 2. After the department has taken enforcement actions pursuant to 9VAC15-60-140, the owner or operator persistently operates the project in significant violation of the project's mitigation plan. Prior to terminating a permit by rule pursuant to subdivision 1 or 2 of this subsection, the department shall hold an informal fact-finding proceeding pursuant to § 2.2-4019 of the Virginia Administrative Process Act in order to assess whether to continue with termination of the permit by rule or to issue any other appropriate order. If the department determines that it should continue with the termination of the permit by rule, the department shall hold a formal hearing pursuant to § 2.2-4020 of the Virginia Administrative Process Act. Notice of the formal hearing shall be delivered to the owner or operator. Any owner or operator whose permit by rule is terminated by the department shall cease operating his small solar energy project. Modification to an existing PBR, with the exception of administrative changes, shall be in accordance with the provisions of 9VAC15-60-30 B.

1. The applicant shall submit all information, documents, and studies supporting the modification. Information that is unchanged in the existing PBR shall not be submitted.

2. In addition to the information required in subdivision 1 of this subsection, a modification to an existing PBR shall also require a certification from the local government pursuant to 9VAC15-60-30 A 2, a public comment period pursuant to 9VAC15-60-90, and the appropriate fee pursuant to 9VAC15-60-110.

3. Upon receipt of all required documents, the department will review the received modification submittal in accordance with the provisions of 9VAC15-60-30 C.

4. Routine maintenance, including activity necessary to maintain the permitted capacity of the project, is not considered a modification.

D. Recordkeeping and reporting shall be provided as follows:

1. The owner or operator shall furnish notification of the following milestones:

a. The date the project began construction within 30 days after such date;

b. Commencement of commercial operation within 30 days of such date;

c. The date of any onsite construction or significant onsite maintenance that could impact the project's mitigation and avoidance plan within 15 days after such date;

d. A map of the project post construction clearly showing panel configuration relative to any required mitigation and incorporating any onsite changes resulting from any onsite construction or significant onsite maintenance that could impact the project mitigation and avoidance plan within 90 days of completion of such work; and

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.

2. A copy of the site map clearly showing any resources to be avoided or mitigated shall be maintained on site during construction.

3. Upon request, the owner shall furnish to the department copies of records required to be kept by this permit by rule.

4. Within 30 days of notification, the owner shall provide any information requested by the department.

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

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit by rule Fees shall be collected for a PBR or a modification to an existing permit by rule PBR for a small solar energy project subject to Part II (9VAC15-60-30 et seq.) of this chapter. No fee shall be required for administrative permit changes pursuant to 9VAC15-60-100 A or B.

B. Permit fee payment and deposit. Fees for permit by rule PBR applications or modifications shall be paid by the applicant as follows:

1. Due date. All permit application, fees or modification, or CAPZ mitigation fees, if applicable, are due on submittal day of the at the time of application or modification package submittal.

2. Method of payment. Fees shall be collected utilizing, where practicable, an online payment system. Until such system is operational, fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

a. Fees shall be in United States currency, except that agencies and institutions of the Commonwealth of Virginia may submit interagency transfers for the amount of the fee.

b. The department may provide a means to pay fees electronically. When fees are collected electronically pursuant to this part through credit cards, business transaction costs to the department associated with processing such payments may be assessed.

3. Incomplete payments. All incomplete payments shall be deemed nonpayments.

4. Late payment. No PBR application or modification submittal will be deemed complete until the department receives proper payment.

a. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account.

b. The department is entitled to all remedies available under the Code of Virginia in collecting any past due amount.

C. Fee schedules. Each application for a permit by rule PBR and each application for a modification of a permit by rule PBR is a separate action and shall be assessed a separate fee. The amount of the permit application fee is based on the costs associated with the permitting program required by this chapter. The fee schedules are shown in the following table Table 2.

TABLE 2. Fee Schedules.
Type of Action	Fee
Permit by rule application – by rated capacity: >5 MW up to and including 25 MW >25 MW up to and including 50 MW >50 MW up to and including 75 MW >75 MW up to and including 150 MW	$8,000 $10,000 $12,000 $14,000
Permit by rule modification – for any project subject to Part II of this chapter	$4,000

Table 2 Fee Schedules
Type of Action	Fee
PBR application > 5 MW up to and including 25 MW	$8,000
PBR application > 25 MW up to and including 50 MW	$10,000
PBR application > 50 MW up to and including 75 MW	$12,000
PBR application > 75 MW up to and including 150 MW	$14,000
PBR modification > 5 MW up to and including 150 MW	$4,000

All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment:

1. Applicant name, address, and daytime telephone number;

2. Responsible person name, address, and daytime telephone number, if different from the applicant;

3. Name of the project and project location;

4. Whether the fee is for a new PBR issuance or permit modification;

5. The amount of fee submitted; and

6. The existing permit number.

D. Use of fees. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter, including permit by rule PBR processing, permit by rule PBR modification processing, and inspection and monitoring of small solar energy projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this chapter and in § 10.1-1197.6 E of the Code of Virginia.

E. Fund. The fees, received by the department in accordance with this chapter, shall be deposited in the Small Renewable Energy Project Fee Fund as specified in § 10.1-1197.6 F of the Code of Virginia.

F. Periodic review of fees. Beginning July 1, 2013, and periodically thereafter, the The department shall periodically review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.

9VAC15-60-120. Internet accessible resources.

A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.

B. Internet available resources.

1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: http://www.dhr.virginia.gov/registers/register.htm. https://www.dhr.virginia.gov/programs/historic-registers/.

2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: http://www.nps.gov/history/local-law/arch_stnds_9.htm. https://www.doi.gov/pam/asset-management/historic-preservation/pqs.

3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, 600 East Main Street, 24th Floor, Richmond, Virginia. Available at the following Internet address: http://www.dcr.virginia.gov/natural_heritage/ncintro.shtml. https://www.dcr.virginia.gov/natural-heritage/natural-communities/.

4. Virginia's Comprehensive Wildlife Conservation Strategy, 2005 2015 (referred to as the Virginia Wildlife Action Plan), Virginia Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, Virginia. Virginia Department of Wildlife Resources, 7870 Villa Park Drive, Suite 400, Henrico, Virginia. Available at the following Internet address: http://www.bewildvirginia.org/wildlifeplan/. https://dwr.virginia.gov/wildlife/wildlife-action-plan/wildlife-action-plan-2015/

C. Internet applications.

1. Coastal GEMS application, 2010, Virginia Department of Environmental Quality. Available at the following Internet address: http://www.deq.virginia.gov/coastal/coastalgems.html. https://www.deq.virginia.gov/our-programs/coastal-zone-management/coastal-mapping/coastal-gems. NOTE: This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219, (804) 698-4000.

2. Virginia Natural Landscape Assessment, Virginia Department of Conservation and Recreation. Available at the following Internet address: for detailed information on ecological cores go to http://www.dcr.virginia.gov/natural_heritage/vclnavnla.shtm. https://www.dcr.virginia.gov/natural-heritage/vaconvisvnla. Land maps may be viewed at DCR's Land Conservation Data Explorer Geographic Information System website at http://www.vaconservedlands.org/gis.aspx. NOTE: The website is maintained by DCR. Actual shapefiles and metadata are available for free by contacting a DCR staff person at vaconslands@dcr.virginia.gov or DCR, Division of Natural Heritage, 217 Governor Street, Richmond, Virginia 23219, (804) 786-7951. Links for data access are provided through this website.

3. Virginia Fish and Wildlife Information Service, 2010, Virginia Department of Game and Inland Fisheries. Virginia Department of Wildlife Resources. Available at the following Internet address: http://www.vafwis.org/fwis/. NOTE: https://services.dwr.virginia.gov/fwis/. This website is maintained by DGIF DWR and is accessible to the public as "visitors," or to registered subscribers. Registration, however, is required for access to resource-specific or species-specific locational data and records. Assistance and information may be obtained by contacting DGIF, Fish and Wildlife Information Service, 4010 West Broad Street, Richmond, Virginia 23230, (804) 367-6913. DWR, Fish and Wildlife Information Service, email: vafwis_support@dwr.virginia.gov.

4. DWR Wildlife Environmental Review Map Service (WERMS). Available at the following Internet address: https://dwr.virginia.gov/gis/werms/.

Part III

Provisions for Projects Less Than or Equal to Five Megawatts MW or Less Than or Equal to 10 Acres or Meeting Certain Categorical Criteria

9VAC15-60-130. Small solar energy projects less than or equal to five megawatts MW or less than or equal to 10 acres or meeting certain categorical criteria.

A. The owner or operator of a small solar energy project is not required to submit any notification or certification to the department if he meets at least one of the following criteria:

1. The small solar energy project has either a rated capacity equal to or less than 500 kilowatts or a disturbance zone equal to or less than two acres; or

2. The small solar project falls within at least one of the following categories, without regard to the rated capacity or the disturbance zone of the project:

a. The small solar energy project is mounted on a single-family or duplex private residence.

b. The small solar energy project is mounted on one or more buildings less than 50 years old or, if 50 years of age or older, have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

c. The small solar energy project is mounted over one or more existing parking lots, existing roads, or other previously disturbed areas and any impacts to undisturbed areas do not exceed an additional two acres.

d. The small solar energy project utilizes integrated PV only, provided that the building or structure on which the integrated PV materials are used is less than 50 years old or, if 50 years of age or older, has been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

B. The owner or operator of a small solar energy project with either a rated capacity greater than 500 kilowatts and less than or equal to five megawatts or a disturbance zone greater than two acres and less than or equal to 10 acres shall notify the department and shall submit a certification by the governing body of the locality or localities wherein the project will be located that the project complies with all applicable land use ordinances.

A. The following projects shall be subject to this section.

1. Projects with a rated capacity greater than one MW and less than or equal to five MW;

2. Projects with a disturbance zone greater than two acres and less than or equal to 10 acres; and

3. Projects located on previously disturbed or repurposed areas without regard to the rated capacity up to and including 150 MW or where the size of the disturbance zone and any impact to undisturbed areas is greater than two acres or less than or equal to 10 acres. Projects located on a brownfield site should work with the DEQ Office of Remediation Programs (ORP) to verify the brownfield determination.

B. An applicant seeking a PBR under this part shall submit the following:

1. An NOI in a format approved by the department.

2. A certification by the governing body of any locality wherein the project will be located that the project complies with all applicable land use ordinances.

C. The applicant of a project is not required to submit any notification or certification to the department if the applicant meets at least one of the following criteria:

1. The project has either a rated capacity equal to or less than one MW or a disturbance zone equal to or less than two acres; or

2. The project falls within at least one of the following categories, without regard to the rated capacity or the disturbance zone of the project:

a. The project is mounted on a single-family or duplex private residence.

b. The project is mounted on one or more buildings less than 50 years old, or if 50 years of age or older, have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

c. The project is mounted over one or more existing parking lots, existing roads, or other previously disturbed areas and any impacts to undisturbed areas do not exceed an additional two acres.

d. The project utilizes integrated PV only, provided that the building or structure on which the integrated PV materials are used is less than 50 years old, or if 50 years of age or older, has been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.

9VAC15-60-140. Enforcement.

A. The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus, or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

B. Pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the department may terminate the permit by rule whenever the department finds that the applicant has:

1. Knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter;

2. Failed to comply with the conditions or commitments stated within the permit by rule application; or

3. Violated the project's mitigation plan.

FORMS (9VAC15-60)

Web Soil Survey (WSS), Natural Resources Conservation Service, United States Department of Agriculture, Version 3.4.0. Available at the following Internet address: https://websoilsurvey.nrcs.usda.gov/app/

DOCUMENTS INCORPORATED BY REFERENCE (9VAC15-60)

Guidelines for Conducting Historic Resources Survey in Virginia, Virginia Department of Historic Resources, originally published October 2011, revised September 2017, https://www.dhr.virginia.gov/

Virginia Pollinator-Smart/Bird Habitat Scorecard, Proposed or Retrofit Solar Sites, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 2.0a, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

Virginia Pollinator-Smart/Bird Habitat Scorecard, Established Solar Sites, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 2.0b, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

Pollinator-Smart Comprehensive Manual, Virginia Department of Conservation and Recreation (DCR), and Virginia Department of Environmental Quality (DEQ), Version 1.2 originally published October 2011, revised December 2019, https://www.dcr.virginia.gov/ and https://www.deq.virginia.gov/

Virginia Agricultural BMP Cost Share Manual, DCR specifications for No. FR-3 (Woodland Buffer Filter Area), Virginia Department of Conservation and Recreation, revised April 2023, https://www.dcr.virginia.gov

Virginia Agricultural BMP Cost Share Manual, DCR specifications for No. WQ-1 (Riparian Grass Filter Strips), Virginia Department of Conservation and Recreation, revised April 2023, https://www.dcr.virginia.gov

Virginia Department of Forestry (VDOF), Easement Term Guidelines, Virginia Department of Forestry, August 2017, https://dof.virginia.gov/

VOF Template February 7, 2018 Working Farm/Intensive Agriculture, Virginia Outdoors Foundation, February 7, 2018, https://www.vof.org/