In the 2022 session, the GA passed House Bill 206 (HB 206), which directed DEQ to promulgate regulations under its PBR Program to mitigate for the presumed significant adverse impact caused by solar projects that disturb more than 10 acres of prime agricultural soils and 50 acres of contiguous forest land. A copy of HB 206 is included in Appendix 1. HB 206 arose from the prospect of conflict between two high priority goals for the Commonwealth and the hope that these conflicts can be resolved in a way that both goals are achievable. One of these goals is the protection of Virginia’s prime agricultural soils and forest lands. These lands are vital because they have the largest economic impact in the Commonwealth and once altered, cannot be restored. The other goal is to support and encourage the growth of alternative energy, particularly solar, which is a vital pathway for achieving the goals of the Virginia Clean Economy Act, increasing Virginia’s energy independence, and creating green jobs. HB 206 also asked DEQ to consider the degree to which localities can require mitigation measures of solar projects more stringent than those required by the PBR program.

HB 206 required DEQ to convene a diverse stakeholder advisory panel to support the development of regulation which would enable both sets of goals to be achieved. The regulations are due by December 2024. Specifically, HB 206 required the advisory panel to consider criteria for determining mechanisms that could be used in a mitigation plan for solar projects defined as having significant adverse impacts and, determining under what circumstances may projects below the thresholds in HB 206 (10 acres of prime soils or 50 acres of forest) have a significant adverse impact. For an excerpt from the full charge of HB 206, see the “RAP Charge" below in the report.

DEQ began assembling a Regulatory Advisory Panel (RAP) in the spring of 2022. DEQ contracted with the Institute for Engagement & Negotiation (IEN) at the University of Virginia to provide facilitation and overall process design and support. DEQ and IEN successfully convened the RAP for five meetings from June through September 2022. The overall RAP consisted of 94 participants across a broad range of interests and 29 Subject Matter Experts from two universities and nine state agencies. Also on the RAP were eight representatives of county and municipal governments. A full list of RAP participants is attached in Appendix 1.

At its first meeting, the RAP agreed to work toward the group's charge: to “complete the work that the advisory group is directed to do under HB 206." The RAP was initially divided into five workgroups (WG), then consolidated into four, each of which explored a specific topic. The workgroups sought to develop the range of issues that would need to be discussed and as much as possible work toward consensus recommendations. The workgroups focused on these issues:

• Workgroup 1: Avoidance and Minimization
• Workgroup 2+3: Mitigation + In Lieu Mitigation
• Workgroup 4: Defining significant adverse impacts for projects under 10 acres of prime soil or under 50 acres of forest
• Workgroup 5: Local Control

The workgroups of the RAP used the first three meetings to develop their proposals. Each workgroup presented its proposals to the full RAP in the fourth meeting. A fifth meeting of the full RAP was held to work toward consensus on those proposals that offered the greatest opportunity for agreement, as well as those of the highest importance.

While there was skepticism among all members about the ability for any consensus to be achieved at this early stage, the process was more successful than anticipated in identifying key issues that stakeholders felt would be important to address in the regulations. Out of 41 proposals developed by the workgroups and considered by the full RAP, four proposals successfully achieved consensus, 14 proposals were not far from consensus, and 23 were not close to consensus. All 41 proposals and their corresponding ideas and concerns are included in the report below. While some of the proposals have significant overlap, each workgroup was attempting to address different key issues and anticipate different types of impacts, so there are important nuances in each proposal that will need to be integrated in the coming year.

In the process of developing these proposals, the RAP identified, cataloged, and began to explore a complex, wide range of issues and concerns. The work ahead in the coming year is to further understand, amend proposals to address remaining concerns, and identify, where possible, to integrate the overlapping proposals.

Several key areas of concern emerged from this work. While most were not resolved, this effort laid the groundwork for greater understanding and discussion in the coming year.

• Definitions: Many of the 41 proposals focused on the issue of clarifying key definitions, as these will create the boundaries of what aspects of solar development will or will not require mitigation. Because of terms that have already been defined in other regulations, the question frequently discussed was whether to rely on those existing definitions or whether there is a need to modify for these specific circumstances. While some may wish to use existing definitions, others believe the circumstances warrant further specificity. Also, while some believe the proliferation of definitions is to be avoided, others have said that program administrators would not be burdened as they would only be responsible for the definitions that apply to their program.

• Education/Best Practices: The development of a guide for local governments was identified as an important way to support rural localities, which currently don’t have staff or resources to research how to best navigate and work with the rapid increase in proposed solar projects, in a way that will enable them to safeguard the interests of their community.

• Functions & Values: The RAP agreed that a core issue was to agree on a list of functions and values of prime agricultural soils and forest lands that would need to be inventoried to determine the degree of significant adverse impact a solar project would have and whether mitigation would be needed. This is a complex and contentious issue: because some of the functions and values are addressed and considered in other programs, some members opposed having them considered by this program, while others felt that the discussion was essential regardless of the overlap.

• Mitigation Issues: Once the functions and values that require mitigation are determined by a desk review, it must then be determined what kinds of mitigation are possible and effective – whether onsite, offsite, in-lieu, or something else entirely. While these are extremely complex issues that will not be resolved easily, the workgroups identified a number of options for consideration in the coming year. An essential first task is to derive an agreed upon definition of what mitigation means.

• Permit-by-Rule (PBR) and Notice of Intent (NOI): Another key concern involves consequences and impacts on local governments of the current PBR process. Local governments want to encourage solar developers to come to the locality as early as possible in the developers’ decision-making process and to consult with the locality on whether a proposed project presents potential conflicts with the locality’s plans, community goals and sentiments, or environmental justice concerns. Solar developers, in turn, are concerned about issues related to confidentiality and making their plans public too early so as not to tip off competitors or unduly raise real estate values in the targeted area. Resolution of these competing interests will require more discussion.

• Verification/Analysis: Functions and values that require mitigation are determined by a desk review. A concern has been raised that data from that review related to the status of the soils and forests must be verified for accuracy. How such verification is to be done, and who should do it, are questions that need to be resolved. Additionally, there is a desire for this regulatory program to be periodically evaluated to determine what is or is not effective and amended to reflect new technologies and methodologies.

In summary, the RAP process was successful in identifying key issues and a range of options for consideration.

Core concerns of solar development proponents are that development affecting prime agricultural and forest lands be treated fairly, and to avoid constraints imposed beyond the development of land for other types of uses. A key concern for solar developers is that the PBR regulatory framework not become so onerous and complex that solar energy is no longer economically feasible in Virginia.

Advocates for the protection of prime agricultural soils and forest lands have other core concerns, primarily that these resources cannot be replaced. Once prime agricultural soil has been impacted through subsoil compaction and loss of structure, they may be restored to similar uses but may never be restored to their pre-disturbance levels of prime productivity. Because Virginia’s largest industry covering the largest land area is agriculture and forestry, the loss of prime soils and forest lands is seen as a direct threat to these important economic and natural resources, and must be avoided, minimized when possible, and mitigated when impact cannot be avoided.

Paradoxically, these competing interests all reflect core goals of the Commonwealth. This RAP has created the foundation for continuing discussions around these competing goals. Future discussions to find a path forward that will honor both goals will be worth the challenge.