Title of Regulation: 9VAC15-60. Small Renewable Energy Projects (Solar) Permit by Rule (amending 9VAC15-60-10 through 9VAC15-60-130; adding 9VAC15-60-45, 9VAC15-60-55, 9VAC15-60-65).

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

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: May 14, 2021.

Agency Contact: Mary E. Major, Department of Environmental Quality, 1111 East Main Street, Suite 1400 P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.

Basis: The legal basis for the Small Renewable Energy Projects (Solar) Permit by Rule (9VAC15-60) is the Small Renewable Energy Projects Act, Article 5, (§ 10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia. Specifically, § 10.1-1197.5 of the Code of Virginia defines small renewable energy projects to be up to and including projects of 150 megawatts or less in the Commonwealth, and § 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 such permitting activities.

Purpose: The purpose of this regulatory action is to clarify the regulatory requirements for applicants and permitted facilities in order to improve the current permitting process. Additionally, an appropriate fee structure is proposed in order to fully support the program, including compliance and enforcement activities. The proposed changes are necessary to provide protection of natural resources and still protect the health, safety, and welfare of citizens.

Substance: The permit by rule (PBR) regulation establishes the specific criteria required for a complete application to construct and operate a small renewable solar project in Virginia. Rules for public notice and public comment, determining potential significant impact to natural and cultural resources, and establishing an appropriate fee structure are also included. Additional substantive provisions that are being considered include (i) clarifying definitions; (ii) clarifying the procedures for natural and cultural resource analysis for project applications submitted after 12 months after the effective date of the amendments; (iii) clarifying size of projects exempt from permitting; (iv) clarifying public participation requirements as part of the application process; (v) specifying operation, recordkeeping, and reporting requirements; (vi) clarifying procedures for modification or transfer of ownership or name change of a permitted facility; and (vii) establishing a new fee structure for project applications submitted after the effective date of the amendments.

Issues: The regulation will enhance protection of significant natural resources while still maintaining a streamlined PBR permitting process for solar development. Public health, safety, and welfare will also be protected while meeting the stated goals for renewable energy throughout the Commonwealth as mandated by the Small Renewable Energy Projects Act, Article 5 (10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia and the Virginia 2018 Energy Plan. The PBR permitting process will not infringe on personal property rights yet will provide additional considerations for impacts to prime forestland, which are vital for the water quality and economic development. The proposed amendments minimize the economic impact on small businesses in a manner consistent with the stated objectives of applicable law while ensuring the identification and protection of valuable natural and cultural resources of the Commonwealth in an efficient, cost-effective manner. Fees are increased to cover the cost of the program, as required by law, including the use of standard forms for some required regulatory activities will make the process more efficient and easier for solar developers, and the information received and made available to the public will be more consistent.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Environmental Quality (DEQ) proposes numerous amendments to the regulation concerning: 1) fees, 2) ecological cores (primarily forests), 3) threatened and endangered insects, 4) planting to attract pollinators, 5) historic resources, 6) timeframes, 7) projects with reduced requirements, and 8) clarifications.

Background. Prior to 2012, the only route to obtaining a permit to construct and operate a solar energy project was through the State Corporation Commission (SCC). Pursuant to Chapters 808 and 854 of the 2009 Acts of Assembly,¹ DEQ promulgated 9VAC15-60 Small Renewable Energy Projects (Solar) Permit by Rule in 2012. Permit by rule (PBR) is defined in the regulation as "provisions of the regulations stating that a project or activity is deemed to have a permit if it meets the requirements of the provision." The 2009 legislation allowed DEQ to issue such permits for solar projects with an electricity generating rated capacity not exceeding 100 megawatts (MW). Legislation in 2017 increased that maximum to 150 MW.² The first solar project was permitted by rule in 2015. Thus far more than 50 PBR permits or modifications have been granted.³

The PBR process allows developers to apply to construct and operate a small solar project when the PBR application meets the regulatory criteria. DEQ has 90 days from the application submittal date to determine if a PBR application is "complete" or "incomplete." Construction cannot begin until the PBR application has been determined to be "complete." Developers must include with the application analyses of preconstruction wildlife, historic resources, and natural heritage resources. If DEQ finds that the project as proposed would likely result in significant adverse impact to either specified wildlife or historic resources, the developer is required to include an acceptable mitigation plan as a component of the application. If DEQ determines that the mitigation plan is inadequate to protect the resource, DEQ provides specific information to the applicant to identify necessary requirements for the plan to be approved.

The primary advantage of obtaining a permit through the PBR process is that DEQ has a maximum of 90 days to determine whether the submitted application is complete (i.e., approved). Construction can commence once the application is deemed complete. In contrast, there is no fixed timeframe for application review through SCC.

Each application for a PBR and each modification of a PBR is a separate action and is assessed a separate fee. Under the current regulation, the fees for a permit application or modification are listed in Table 1. There is no maintenance fee.

Table 1: Current Fees

The developer of a solar energy project with either a rated capacity greater than 500 kilowatts (KW) and less than or equal to five MW, or a disturbance zone⁴ greater than two acres and less than or equal to 10 acres, must notify DEQ and 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. These projects would not be subject to any other requirements of the regulation.

The developer of a solar energy project is not required to submit any notification or certification, nor be subject to any other requirements of the regulation, 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 KW 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 the Department of Historic Resources (DHR) within the preceding seven years to be not eligible for listing in the Virginia Landmarks Register.

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 photovoltaic⁵ only, provided that the building or structure on which the integrated photovoltaic 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 eligible for listing in the Virginia Landmarks Register.

Estimated Benefits and Costs.

Fees: The fees collected thus far have fallen well short of the costs of administering and enforcing the regulation. Thus, DEQ proposes higher application fees, and new fees for: 1) notice of intent (NOI) to submit documentation for a permit, 2) application review after receipt of an incomplete determination, and 3) annual permit maintenance. NOI is required at least 90 days prior to submission of the application and is already required in the current regulation. Only the proposed fee is new. According to the agency, 12% of applications received thus far were deemed incomplete. These were cases where the applicant had not responded or provided the required information within the statutory 90-day review timeframe. Ongoing costs are incurred by the agency such as for inspections and monitoring to ensure compliance with this regulation. The proposed new annual permit maintenance fee would apply to those costs.

The following are the proposed fees related to permit applications or modifications that are submitted after the effective date of the proposed regulation.

Table 2: Proposed Application-related and Modification Fees

For projects that are large enough to generate fees,⁶ the cost of the application fee combined with the NOI fee would be higher in the proposed regulation versus the current regulation regardless of the electricity generating rated capacity of the project. Table 3 shows the differences for sample megawatt levels.

Table 3: Comparison of Current and Proposed Application plus NOI Fees

As can be seen in Table 4, the proposed modification fee (20% of application fee) is higher than the current $4,000 modification fee for projects 76 MW and higher, and lower than the current $4,000 modification fee for projects 75 MW and lower.

Table 4: Comparison of Current and Proposed Modification Fees

All projects that are permitted after the effective date of the proposed regulation would be assessed an annual permit maintenance fee. No maintenance fee would be assessed for projects that were permitted prior to the effective date of the proposed amendments. The initial annual permit maintenance fee would be comprised of a base fee of $500 plus $15 per MW of the project. Maintenance fees would be adjusted annually based on the Consumer Price Index. Table 5 shows what the annual permit maintenance fees would be for the first year for a sample of megawatt levels.

Table 5: Annual Permit Maintenance Fee (First Year)

It appears that the higher fees are necessary to maintain the small solar project PBR program that ensures protection of existing environmental and historic resources, while permitting the construction and operation of clean energy projects. It is possible that the proposed higher application fees and new NOI and annual permit maintenance fees could potentially discourage some developers from pursuing some solar projects that would have been pursued under the current fee structure, or reduce their electricity generating rated capacity to less than or equal to five MW to avoid owing any fee, or choose to pursue the project in a different state. Alternatively, some developers may decide that with the proposed higher fees that applying for a permit through SCC may be preferable despite the advantage of the guaranteed 90-day determination. SCC does not assess permitting fees for solar projects.⁹

Ecological Cores.

Adverse Impact and Mitigation: The Department of Conservation and Recreation (DCR) and the Department of Forestry have indicated that the impact to forest lands from proposed solar projects, particularly projects east of I-95 that have a greater impact to the Bay watershed are of vital importance both from an environmental and economic perspective and should be assessed during the project development process. The Virginia Natural Heritage Program in DCR has developed a network of natural lands for the Commonwealth. This project, named the Virginia Natural Landscape Assessment (VaNLA), is a landscape-scale geospatial analysis used for identifying, prioritizing, and linking natural lands in Virginia. Using land cover data derived from satellite imagery, the VaNLA identifies large patches of natural land with at least 100 acres of interior cover. This interior cover, known as core area, begins 100 meters from patch edges. Small patches with 10 to 99 acres of interior cover are included as habitat fragments that support landscape corridors and that may be important in localities with few large patches of natural land.

Core areas and habitat fragments are referred to collectively as "ecological cores." Although the VaNLA is predominantly an analysis of forests, ecological cores include marshes, dunes, and beaches where these covers are abundant and exceed minimum size requirements. Over 50 attributes are assigned to the ecological cores providing information about rare species and habitats, environmental diversity, species diversity, patch characteristics, patch context, and water quality benefits. The ecological cores ranked highest for these attributes are called C1 and C2.

DEQ proposes to require that for applications submitted more than 12 months after the effective date of the proposed regulation, that the application include a preconstruction desktop survey of VaNLA ecological cores within the disturbance zone conducted within six months prior to the date of the application submittal. DCR could do this work for the applicant at a charge. According to DCR, depending on the complexity of the project, analysis, review, and recommendations would take an estimated four to eight hours, and in some cases more time. The cost to the applicant for DCR staff time would be $60 per hour. Thus, the cost would be approximated $240 to $480 per project application.

If it is determined that ecological cores ranked C1 or C2 occur within the disturbance zone, significant adverse impacts will be deemed likely. The applicant, if he chooses to go forward using that specific plot of land, would be required to prepare a mitigation plan. The proposed regulation specifies that mitigation measures for significant adverse impacts to natural heritage resources described in VaNLA ecological cores shall include all reasonable measures to avoid and minimize significant adverse impacts. The applicant shall demonstrate in their 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. DCR's three suggested mitigation activities to be used when C1 and C2 cores cannot be avoided are: afforestation (restoration), avoided deforestation (preservation), and forest enhancement.

Afforestation (restoration) consists of converting open land to forest by planting native trees appropriate for the ecoregion in which the impact being mitigated for occurred. This activity offsets the forest conversion that occurs in the project footprint by creating additional forestland. The planted acres should be protected from conversion to any other land use in perpetuity through the use of a protective instrument that overlays the mitigation acreage.

Avoided deforestation (preservation) consists of permanently protecting existing forested habitat on private lands from conversion to other land uses. This activity offsets clearing and fragmentation impacts by ensuring that other nearby forestland that could otherwise be at risk of conversion will be maintained in forestland in perpetuity. As with afforestation acres, this mitigation activity requires that a perpetually protective instrument overlay the mitigation acreage. These protected forest acres remain as forest, although harvesting timber may be allowed as long as the harvested area is allowed to regrow as forest or is replanted.

Forest enhancement consists of implementing appropriate silvicultural practices that result in the improvement of ecological functions of forests on public and private lands. This mitigation activity offsets fragmentation impacts by increasing the ecological integrity of nearby forests. The forest improvement achieved should persist for a "significant period of time" or until the lift in ecological value is sustainable with little or no management.

Mitigation costs would vary greatly on a project by project basis depending on the project size, project location, ecological cores impacts, etc. DCR has estimated mitigation costs using afforestation, avoided deforestation, and forest enhancement for four different examples with different attributes. With these four examples, DCR found total mitigation costs of $45,131, $121,288, $459,319, and $701,194 respectively. The variance in mitigation cost appears to depend upon the number of acres in each affected core, whether the impacts were direct or indirect, and whether the affected area was in the interior or exterior part of a core. Alternatively, if the project could be located on land without C1 or C2 cores, these specific costs could be avoided.

Threatened and Endangered Insects.

Adverse Impact and 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. The agency proposes to expand this, by specifying that 12 months after the effective date of the proposed regulation, T&E insect species would also be considered T&E wildlife. Thus, for applications submitted 12 months after the effective date of the proposed regulation, 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 DCR 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). Solar sites that meet the minimum requirement of 80 points on the Scorecard are considered "Certified Virginia Pollinator-Smart," those that score 100 or more points are considered "Gold Certified Virginia Pollinator-Smart." The scorecard can be viewed at the following URL: https://www.dcr.virginia.gov/natural-heritage/document/solar-site-pollinator-bird-habitat-scorecard-a-new.pdf. The majority of points on the scorecard result from planting pollinator-friendly 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. 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 paper¹⁰ from Yale University Center for Business and the Environment finds that that pollinator-friendly solar may generate private benefits to solar developers that justify its adoption without policy intervention. 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 another sizable social benefit in the form of increased crop yields when projects are sited near pollinator-dependent farmland.

Historic Resources: The existing and proposed regulations both require that the applicant conduct an architectural field 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 an evaluation of the eligibility of any identified resource for listing in the Virginia Landmarks Register. Practically speaking, this may be conducted by an outside firm with relevant expertise.

DEQ proposes to state in the proposed regulation that the architectural survey area may be refined by the applicant based on an analysis to exclude areas that have no direct view to the project. This could save expenditures for the applicant. According to DHR, the cost savings for refining the study area would be highly variable depending on the population density of the area (and number of associated buildings and structures) and degree to which the study area can be refined. DHR expects average savings to be in the single-digit thousands of dollars.

The existing and proposed regulations both require that the applicant conduct an archaeological field survey of the disturbance zone and an evaluation of the eligibility of any identified archaeological site for listing in the Virginia Landmarks Register. This may also be conducted by an outside firm with relevant expertise.

DEQ proposes to state in the proposed regulation that to streamline archaeological investigations, the survey may be guided by a research design that utilizes a probability assessment or predictive modeling. Such a research design shall be approved by DEQ and DHR for use in the project prior to conducting the fieldwork. This would also potentially reduce expenditures for the applicant. DHR points out that the cost-savings would be highly variable depending on the existing conditions, site probability, and degree to which the study area can be refined. DHR expects savings to be in the high single-digit thousands to low tens of thousands of dollars.

The current regulation allows that as an alternative to performing this archaeological survey, the applicant may make a demonstration to DEQ 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. According to DEQ, this approach could still result in significant negative impacts to cultural resources. In practice there have been lengthy delays in permitting due to incomplete mitigation plans for cultural resources when this approach has been followed. Consequently, the agency proposes to eliminate this option.

All of the proposed amendments in this section only apply to applications submitted more than 12 months after the effective date of the proposed regulation.

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 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 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 authorization is deemed invalid, new fees and application documents would have to be submitted if the developer did eventually decide to pursue the project.

Under the current regulation, reporting change of ownership must be done at least 30 days prior to the change. According to the agency, industry has indicated that it is difficult to predict ownership transactions prior to the actual date and requested that 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 make reporting easier for the applicant.

Developers are currently required to submit post-construction site maps, but no deadline is indicated. With no deadline, DEQ has had problems enforcing their submission, which hinders their ability to ensure good practices. The agency proposes to require that the post-construction site maps be submitted within six months from the beginning of operation.

For applications submitted more than 12 months after the effective date of the proposed regulation, DEQ proposes to require that DHR provide comments on a complete historical resource analysis within 30 days. If it does not, the applicant may assume DHR concurrence with the recommendations of the study or analysis and proceed accordingly. This is beneficial for applicants and DHR does not object.

Projects with Reduced Requirements: DEQ proposes to clarify that projects proposed for previously disturbed land or brownfields that do not impact more than 10 acres, regardless of megawatt capacity, must only notify DEQ and 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. These projects would not be subject to any other requirements of the regulation. DEQ reports that this approach is currently allowed but is not clearly delineated in the existing regulation. Therefore, to the extent that the availability of this approach has not been widely known, this proposed amendment may encourage development on previously disturbed land, protecting additional forest lands or prime agricultural land.

DEQ also proposes to increase the maximum rated capacity where 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 is at the request of 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. Solar project developers who submit applications more than 12 months after the effective date of the proposed regulation are likely to be most affected by the proposed regulation since some of the proposed amendments only apply for this category of developer. Solar developers that submit applications after the effective date of the proposed regulation but before 12 months after the effective date would not be subject to some proposed changes such as required mitigation for the presence C1 or C2 cores or T&E insects in the disturbance zone, but they would be subject to other amendments, including the new fee structure. Solar projects permitted prior to the effective date of the proposed regulation would not be subject to most of the proposed amendments but would be subject to some, such as the proposed new modification fee and change in deadline to report change in ownership. According to DEQ, there are 63 projects that have active notices of intent to submit the documentation for a PBR.

Firms involved in the manufacture or distribution of solar equipment, consultants involved in environmental assessments or cultural resource evaluations, businesses that help with mitigation, sellers of installers of pollinator-friendly plants, and other ancillary businesses affiliated with the solar industry (such as law firms, etc.) may also be affected the proposed regulation.

Small Businesses Affected.

Types and Estimated Number of Small Businesses Affected: Many of the firms described likely qualify as small businesses, but DEQ does not have an estimated number.¹¹

Costs and Other Effects. The proposals to restructure fees and require mitigation for projects that would go forward on land containing C1 and C2 and T&E insects may increase costs for some small solar project developers. In contrast, the proposals to allow the architectural survey area to be refined by the applicant based on an analysis to exclude areas that have no direct view and to allow the archaeological survey to be guided by a research design that utilizes a probability assessment or predictive modeling would likely reduce cost for small solar project developers.

The proposal to require mitigation for projects that would go forward on land containing C1 and C2 and T&E insects may increase revenue for some small firms that provide related services.

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

Localities¹² Affected.¹³ There are NOIs, applications, or permits for solar PBR projects in essentially all regions of the Commonwealth. Thus, all localities appear to be potentially affected. Localities that disproportionately have ecological cores C1 or C2 or T&E insects may be particularly affected by the proposed requirement for mitigation for projects that would go forward on land containing C1 and C2 and T&E insects, respectively. Unless a local government itself were to choose to develop a solar energy project, the proposed amendments would not likely affect their costs.

Projected Impact on Employment. It is not clear whether the proposed amendments in net would substantively affect total employment. It is possible that the proposed higher application fees and new NOI and annual permit maintenance fees, combined with new mitigation requirements for areas with ecological cores C1 or C2 or T&E insects, could potentially discourage some developers from pursuing some solar projects that would have been pursued under the current regulation or choose to pursue the project in a different state. There are some proposals that would reduce cost, such as the lower-cost historical resource surveys, but these lower costs would not likely fully offset the other cost increases. If the net increase in costs were to substantially decrease the establishment of new solar projects, then there would be some reduced employment compared to what otherwise would have occurred.

Effects on the Use and Value of Private Property. The proposals in net appear to increase the cost of developing real estate for the purpose of creating and operating solar energy projects with electricity generating rated capacity greater than five MW and equal or less than 150 MW. This may in some cases discourage such development.

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¹See Chapter 808: https://lis.virginia.gov/cgi-bin/legp604.exe?091 ful CHAP0808 hil

²See Chapter 368 https://lis.virginia.gov/cgi-bin/legp604.exe?171 ful CHAP0368 hil

³Source: DEQ

⁴Disturbance zone is defined as "the area within the site directly impacted by land-disturbing activity including construction and operation of the solar energy project and 100 feet from the boundary of the directly impacted area."

⁵Photovoltaic is defined as "materials and devices that absorb sunlight and convert it directly into electricity by semiconductors."

⁶Projects with capacity of 5 MW or less are not assessed any fees in both the current and proposed regulations.

⁷Only includes application fee since there is no NOI fee in the current regulation.

⁸Includes NOI fee; does not include incomplete fee.

⁹Source: SCC

¹⁰See https://cbey.yale.edu/research/maximizing-land-use-benefits-from-utility-scale-solar

¹¹Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

^12"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.

¹³§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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:

The proposed amendments (i) clarify specific definitions, (ii) establish clear timeframes for data submittals and recordkeeping activities, (iii) clarify requirements for natural and cultural resource studies, (iv) clarify the public participation procedures, and (v) adjust the fee structure to adequately fund the program.

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:

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

"Archaeological field survey" means systematic identification-level archaeological investigations as described in DHR's guidelines for conducting historic resources survey 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.

"Architectural field survey" means comprehensive, reconnaissance-level documentation as described in DHR's guidelines for conducting historic resources survey 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.

"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.

"Begin commercial operation" means to have begun to generate electricity for sale, excluding the sale of test generation.

"Begin construction" means a continuous program of construction or land-disturbing activity necessary to construct a small solar energy project.

"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).

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

"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.

"DACS" means the Department of Agriculture and Consumer Services.

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

"DCR" means the Department of Conservation and Recreation.

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

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

"DHR" means the Department of Historic Resources.

"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 and 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 following statement signed by the responsible official or person and submitted to the department with the application documents for a permit by rule. This certification also applies to all supplemental information provided to the department after the initial application submittal:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or 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."

"DWR" means the Department of Wildlife Resources.

"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 manmade change to the land surface that potentially changes its runoff characteristics, including clearing, grading, or excavation, except that the term shall not include those exemptions specified in § 62.1-44.15:34 of the Code of Virginia.

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

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

"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 owns all or, a portion of, or has any property 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 of 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 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.

"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 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.

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

"Responsible person" means:

1. 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 who performs similar policy or decision-making functions for the corporation or limited liability company or is subject to Title 13.1 of the Code of Virginia;

2. For partnership or sole proprietorship, a general partner or the proprietor, respectively; and

3. For a local government entity subject to Title 15.2 of the Code of Virginia or state, federal, or other public agency, either a principal executive officer or ranking elected official.

"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.

"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.

"T&E," "state threatened or endangered species," or "state-listed species" means: any wildlife species designated as a Virginia endangered or threatened species by DGIF pursuant to the §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130.

"Virginia Pollinator Protection Strategy" means a statewide strategy pursuant to § 3.2-108.1 of the Code of Virginia.

"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 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. This chapter applies throughout the Commonwealth of Virginia. Nothing in this chapter shall be interpreted to affect the rights of a private property owner.

B. The department has determined that a permit by rule is required for small solar energy projects with a rated capacity greater than five megawatts 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 permit by rule provisions for these projects in Part II (9VAC15-60-30 et seq.) of this chapter.

C. 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 requirements, if any, for these projects in Part III (9VAC15-60-130 A, B, and B) C) 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. 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 The application for a small solar energy project with a rated capacity greater than five megawatts 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, B, and B) C) 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; A NOI to submit the necessary documentation for a permit by rule, to be published in the Virginia Register.

a. The applicant shall submit the NOI in a form approved by the department along with the appropriate fee pursuant to 9VAC15-60-110.

(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 the same time the notice is submitted to the department.

b. The NOI 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.

(1) A NOI extension may be granted for an additional 36 months at which time the NOI shall expire.

(2) A new NOI and appropriate fee shall be required for any project to be permitted under the PBR for which a NOI has expired.

c. An applicant seeking changes for a project that results in an increase of MW or acreage shall submit a new NOI using the appropriate form. No additional fee shall be assessed.

d. NOI change of operator, ownership, or controlling interest for a project shall require a notification to the department 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 form acceptable to the department.

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

(3) The department shall 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 locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;.

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.

a. 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 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;.

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 resources. The owner or operator shall perform the analyses prescribed in pursuant to 9VAC15-60-40 or 9VAC15-60-45, as applicable. 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; or 9VAC15-60-65, as applicable, if a determination of likely significant adverse impacts has been made according to 9VAC15-60-50 or 9VAC15-60-55, as applicable.

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 or 9VAC15-60-55, as applicable.

11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a A detailed site plan 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 has registered or applied for or obtained all necessary environmental permits;.

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.

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 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.

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 person or 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 shall, after consultation with DCR, DHR, and DWR, form a determination that an application is administratively complete or incomplete.

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

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

c. Any project for which the PBR or modification authorization has been deemed invalid will require 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 form a determination that an application is administratively incomplete and notify the applicant in writing and specify the deficiencies.

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

4. 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 resources for applications submitted prior to (12 months after the effective date of the amendments).

A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following: This section applies to all applications submitted prior to (12 months after the effective date of the amendments). For purposes of this section, 9VAC15-60-50, and 9VAC15-60-60, the definition of:

1. "T&E," "state threatened or endangered species," or "state-listed species" means any wildlife species designated as a Virginia endangered or threatened species by DWR pursuant to the §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130.

2. "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.

B. 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.

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 C. The applicant shall also conduct 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 on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary and present this information 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 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 the eligibility of any identified resource for listing in the VLR.

3. Archaeological survey. The applicant shall conduct an archaeological field survey of the disturbance zone and evaluate the 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.

C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the D. The applicant shall also conduct a preconstruction desktop survey of natural heritage resources within the disturbance zone.

D. E. 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, B C, and C D 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.

9VAC15-60-45. Analysis of the beneficial and adverse impacts on natural resources for applications submitted after (12 months after the effective date of the amendments).

A. This section applies to applications submitted after (12 months after the effective date of the amendments). For purposes of this section, 9VAC15-60-55 and 9VAC15-60-65:

1. The definition of "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 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 DACS pursuant to § 3.2-1000-1100 of the Code of Virginia and 2VAC5-320-10.

2. The definition of "Wildlife" means wild animals; except, however, that T&E insect species shall be considered T&E wildlife.

B. The applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following:

1. A wildlife report and map generated either (i) from DWR's Virginia Fish and Wildlife Information Service web-based application (9VAC15-60-120 C 3) or (ii) from a data and mapping system including the most recent data available from DWR's subscriber-based Wildlife Environmental Review Map Service of the following: (a) known wildlife species and habitat features on the site or within two miles of the boundary of the site, (b) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone, and (c) 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 project site will be located in part or in whole within one or more CAPZ.

3. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife identified by these studies and analyses.

C. The applicant shall perform a preconstruction historic resources analysis conducted by a qualified professional meeting the qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-60-120 B 2) in the appropriate discipline. Any study or analysis required under this subsection submitted to DHR for review may be considered accepted by DHR if DHR does not provide comments within 30 calendar days from confirmed receipt of an analysis determined to be administratively complete. In this case, the applicant may assume DHR concurrence with the recommendations of the study or analysis and proceed accordingly. The analysis shall include each of the following:

1. Information on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary, 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. An architectural field 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 an evaluation of the eligibility of any identified resource for listing in the VLR. The architectural survey area may be refined by the applicant based on an analysis to exclude areas that have no direct view to the project. The applicant shall provide detailed justification for any changes to the survey area.

3. An archaeological field survey of the disturbance zone and an evaluation of the eligibility of any identified archaeological site for listing in the VLR. To streamline archaeological investigations, the survey may be guided by a research design that utilizes a probability assessment or predictive modeling. Such a research design shall be approved by DEQ and DHR for use in the project prior to conducting the fieldwork.

D. The applicant shall conduct a preconstruction desktop survey of natural heritage resources and Virginia Natural Lands Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal. The analysis shall include:

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 pursuant to 9VAC15-60-120 C 2 and include the most recent data available on the following:

a. Documented occurrences of natural heritage resources within 100 feet of the site;

b. Intersection of the site with predicated 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.

2. A completed DCR Virginia Solar Site Pollinator/Bird Habitat Scorecard (9VAC15-60-120 B 5).

9VAC15-60-50. Determination of likely significant adverse impacts for applications submitted prior to (12 months after the effective date of the amendments).

A. This section applies to applications submitted prior to (12 months after the effective date of the amendments).

B. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-60-40 A B 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 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map.

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

9VAC15-60-55. Determination of likely significant adverse impacts for applications submitted after (12 months after the effective date of the amendments).

A. This section applies to applications submitted after (12 months after the effective date of the amendments).

B. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-60-45 B document that any of the following conditions exists:

1. State-listed T&E wildlife species 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 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map.

C. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-60-45 C indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

D. The department shall find that significant adverse impacts to natural heritage resources and ecological cores are likely whenever the analysis prescribed by 9VAC15-60-45 D indicates that natural heritage resources or Virginia Natural Landscape Assessment Ecological Cores with a Conservation Rank of C1 or C2 occur within the disturbance zone.

9VAC15-60-60. Mitigation plan for applications submitted prior to (12 months after the effective date of the amendments).

A. This section applies to applications submitted prior to (12 months after the effective date of the amendments).

B. 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.

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

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 9VAC15-60-40 B or D.

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.

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

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

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 be mitigated through archaeological data recovery.

9VAC15-60-65. Mitigation Plan for applications submitted after (12 months after the effective date of the amendments) projects permitted after January 1, 2021.

A. This section shall apply to applications submitted after (12 months after the effective date of the amendments).

B. 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 analysis pursuant to 9VAC15-60-55. 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.

C. 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 9VAC15-60-45 B or D.

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 (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. If nighttime construction cannot be avoided, designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings. Proposed project lighting must 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 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map, contribute $1,000 per MW of rated capacity, or partial 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.

D. 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 be mitigated through archaeological data recovery.

E. 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 a 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.

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, and shall include, the following: (i) the boundaries of the site; disturbance zone with 100 foot buffer, panel zone, open areas, and screening areas; (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 onsite and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels; and (v) 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. The applicant shall submit post-construction site maps to the department within six months after beginning commercial operation that show the physical features, topography, and land cover of the area within the site. The maps 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 9AVC15-60-60 or 9VAC15-60-65, as applicable; and

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

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, 9VAC15-60-55, 9VAC15-60-60, or 9VAC15-60-65 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 100-foot buffer, and (iv) application frequency of herbicides over the life of the project. Owners and operators are encouraged to utilize the link to the DACS Fieldwatch (9VAC15-60-120 B 6) prior to the application of either pesticides or herbicides.

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 where the project is to be located and in at least one local newspaper that reaches low-income or minority populations in the area where the project is to be located identified by the locality. 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 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 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, reporting, and permit termination.

A. Change of ownership. A permit by rule 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 the 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 form acceptable to the department;

2. The notice shall include a written agreement between the existing and new 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.

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

5. The department shall not consider the change of operator, ownership, or controlling interest for a project shall not 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.

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

2. The department will incorporate the administrative changes to the PBR after receipt of the notification in a form acceptable to the department.

C. Permit by rule termination. The 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 the modification application and include project address, documents, maps, and studies supporting the changes to the existing permit. Information that is unchanged in the existing PBR shall not be submitted. Unchanged information shall be identified and certified as unchanged in the modification application.

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 and applicable fees, the department shall review the modification submittal in accordance with the provisions of subsection C of 9VAC15-60-30.

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 15 days after such date;

b. The date the project began commercial operation within 15 days of such date;

c. The date of any onsite construction or 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 incorporates any onsite changes resulting from any onsite construction or 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 historic resources, a post-construction demonstration of completed mitigation requirements according to the approved mitigation 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 onsite during construction.

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

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

E. 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. The applicant has knowingly 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 Failed to comply with the conditions or commitments stated within the permit by rule application; or

3. Violated 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.

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 an application for a PBR or a modification to an application to modify 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 subsection A or B of 9VAC15-60-100.

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 is 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:

1. The fee for a permit application or modification submitted prior to (insert the effective date of the amendments) is identified on Table 1.

Table 1

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

2. The fee for a permit application or modification submitted after (insert the effective date of the amendments) is identified on Table 2.

Table 2

Type of Action	Fee
NOI fee: >5 MW up to and including 20 MW >20 MW Modification fee for a project subject to Part II of this chapter Incomplete fee: assessed for application review after receipt of an incomplete determination	$2,000 $7,500 base fee plus $150 per MW $7,500 base fee plus $165 per MW 20% of original application fee 20% of original application fee

D. Use of fees. All projects that were permitted after (insert the effective date of the amendments) shall be assessed an annual permit maintenance fee. No maintenance fee shall be assessed for projects that were permitted prior to (insert the effective date of the amendments). The annual permit maintenance fee shall be comprised of a base fee of $500 plus $15 per MW of the project. Maintenance fees shall be adjusted annually based on the Consumer Price Index.

1. The annual adjustment of the permit maintenance fees shall be based upon the annual permit maintenance fee amount for the preceding calendar year and the change in the CPI value published by the U.S. Department of Labor for all-urban consumers over the 12-month period ending on August 31 of the calendar year preceding the calendar year in which the permit maintenance fee is assessed.

2. The CPI for all-urban consumers published by the U.S. Department of Labor may be obtained online from the Bureau of Labor Statistics website.

3. No CPI adjustment shall be made for annual permit maintenance fees assessed in the (insert the calendar year the amendments become effective).

4. The amount of the annual permit maintenance fee shall be rounded down to the nearest whole dollar.

5. Within 30 days following the date of the postmark on the bill, the owner shall pay the fee in full by check, draft, or money order made payable to the Treasurer according to subsection B 2 of this section.

E. All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment in a form acceptable to the department and include the following information:

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, Incomplete fee, permit maintenance, or permit modification;

5. The amount of fee submitted; and

6. The existing permit number.

F. 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. G. 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 H. The department shall will 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.

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.

3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, Virginia. Available at the following Internet address: http://www.dcr.virginia.gov/natural_heritage/ncintro.shtml.

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

5. Pollinator Smart Solar Site Portal, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, Virginia. Available at the following Internet address: https://www.dcr.virginia.gov/natural-heritage/pollinator-smart.

6. Virginia Pollinator Protection Plan, Virginia Department of Agriculture and Consumer Services, 102 Governor Street, Richmond, Virginia. Available at the following Internet address: https://www.vdacs.virginia.gov/plant-industry-services-pollinator-protection-plan.shtml.

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.

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. 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.

3. Virginia Fish and Wildlife Information Service 2010, Virginia Department of Game and Inland Fisheries Wildlife Resources. Available at the following Internet address: http://www.vafwis.org/fwis/.

NOTE: This website is maintained by DGIF 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.

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. Projects meeting one of the following conditions 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; or

3. Projects located on previously disturbed or repurposed areas without regard to the rated capacity or size of the disturbance zone and any impact to undisturbed areas is less than or equal to 10 acres.

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

1. The NOI in a form acceptable to the department.

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

C. The owner or operator of a small solar energy applicant of a 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 one MW 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.

FORMS (9VAC15-60)

Solar Permit by Rule (PBR) Notice of Intent (NOI) Part II 9VAC15-60-30 (rev. 2/2020)

Solar Permit by Rule (PBR) Notice of Intent (NOI) Part III 9VAC15-60-130 (rev. 2/2020)

Solar Permit by Rule (PBR) Withdrawal Notice (rev. 2/2020)

Solar Permit by Rule (PBR) Change of Owner/Operator/Name (rev. 2/2020)