On October 9, 2023, the Virginia Department of Environmental Quality (“DEQ”) published a Notice of Intended Regulatory Action (“NOIRA”) concerning amendments to the Small Solar Renewable Energy Projects Permit Regulation (the Solar PBR), 9VAC15-60. The Solar PBR regulation allows solar developers to obtain a state permit to construct and operate solar facilities without obtaining a Certificate of Public Convenience and Necessity from the State Corporation Commission.
According to the NOIRA, DEQ intends to conform the Solar PBR regulation to Chapter 688 of the 2022 Acts of Assembly to require a mitigation plan detailing reasonable actions to avoid, minimize, or otherwise mitigate impacts to prime agricultural soils and forest lands.
This regulatory action would apply to solar projects that disturb more than 10 acres of prime agricultural soils, or 50 acres of contiguous forest lands, and to projects that would disturb forest lands enrolled in a forestry preservation program. However, projects would be grandfathered if the interconnection request is applied for and received by December 31, 2024.
This regulatory action follows efforts by DEQ to amend the Solar PBR regulations in several respects in 2019. In 2019, DEQ convened a regulatory advisory panel (“RAP”) and drafted proposed regulations. Those regulations ultimately did not receive executive branch approval, however, and were not published in the Virginia Register.
Importantly, the latest potential amendments to the Solar PBR regulation would not be limited to conforming the regulation to be consistent with the 2022 legislation. In the NOIRA, DEQ provides notice that it may change or “clarify” requirements for site plans, public participation, operation and recordkeeping, size exemption, and project transfers.
The agency intends to hold a public hearing on the proposed action. The deadline for public comments is November 8, 2023. Comments can be submitted via mail or through the Virginia Townhall website.
Please contact attorneys Will Reisinger or Matt Gooch should you have any questions about this proposed regulation. ReisingerGooch PLC provides regulatory and transactional counsel to clean energy businesses, associations, and public interest organizations