                                 CODE OF VIRGINIA

PERMIT BY RULE FOR SMALL RENEWABLE ENERGY PROJECTS (§ 10.1-1197.6)

A. Notwithstanding the provisions of &#xA7; 10.1-1186.2:1, the Department shall
develop, by regulations to be effective as soon as practicable, but not later
than July 1, 2012, a permit by rule or permits by rule if it is determined by
the Department that one or more such permits by rule are necessary for the
construction and operation of small renewable energy projects, including such
conditions and standards necessary to protect the Commonwealth&#8217;s natural
resources. If the Department determines that more than a single permit by rule
is necessary, the Department initially shall develop the permit by rule for wind
energy, which shall be effective as soon as practicable, but not later than
January 1, 2011. Subsequent permits by rule regulations shall be effective as
soon as practicable.

B. The conditions for issuance of the permit by rule for small renewable energy
projects shall include:

   1. A notice of intent provided by the applicant, to be published in the
   Virginia Register, that a person intends to submit the necessary documentation
   for a permit by rule for a small renewable energy project;

   2. 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. 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. A copy of the final interconnection agreement between the small renewable
   energy project and the regional transmission organization or transmission
   owner indicating that the connection of the small renewable energy project
   will not cause a reliability problem for the system. If the final agreement is
   not available, the most recent interconnection study shall be sufficient for
   the purposes of this section. When a final interconnection agreement is
   complete, it shall be provided to the Department. The Department shall forward
   a copy of the agreement or study to the State Corporation Commission;

   5. A certification signed by a professional engineer licensed in Virginia that
   the maximum generation capacity of the small renewable energy project by (i)
   an electrical generation facility that generates electricity only from
   sunlight or wind as designed does not exceed 150 megawatts; (ii) an electrical
   generation facility that generates electricity only from falling water, wave
   motion, tides, or geothermal power as designed does not exceed 100 megawatts;
   or (iii) an electrical generation facility that generates electricity only
   from biomass, energy from waste, or municipal solid waste as designed does not
   exceed 20 megawatts;

   6. An analysis of potential environmental impacts of the small renewable
   energy project&#8217;s operations on attainment of national ambient air
   quality standards;

   7. Where relevant, an analysis of the beneficial and adverse impacts of the
   proposed project on natural resources. 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.
   For prime agricultural soils and forest land, that analysis shall be required
   if a proposed project would disturb more than 10 acres of prime agricultural
   soils or 50 acres of contiguous forest lands, or if it would disturb forest
   lands enrolled in a program for forestry preservation pursuant to subdivision
   2 of &#xA7; 58.1-3233;

   8. If the Department determines that the information collected pursuant to
   subdivision 7 indicates that significant adverse impacts to wildlife, historic
   resources, prime agricultural soils, or forest lands are likely, the
   submission of a mitigation plan, if a draft plan was not provided by the
   applicant as part of the initial application, with a 45-day public comment
   period detailing reasonable actions to be taken by the owner or operator to
   avoid, minimize, or otherwise mitigate such impacts, and to measure the
   efficacy of those actions. A project will be deemed to have a significant
   adverse impact if it would disturb more than 10 acres of prime agricultural
   soils or 50 acres of contiguous forest lands, or if it would disturb forest
   lands enrolled in a program for forestry preservation pursuant to subdivision
   2 of &#xA7; 58.1-3233;

   9. A certification signed by a professional engineer licensed in Virginia that
   the small renewable energy project is designed in accordance with all of the
   standards that are established in the regulations applicable to the permit by
   rule;

   10. An operating plan describing how any standards established in the
   regulations applicable to the permit by rule will be achieved;

   11. A detailed site plan with project location maps that show the location of
   all components of the small renewable energy project, including any towers.
   Changes to the site plan that occur after the applicant has submitted an
   application shall be allowed by the Department without restarting the
   application process, if the changes were the result of optimizing technical,
   environmental, and cost considerations, do not materially alter the
   environmental effects caused by the facility, or do not alter any other
   environmental permits that the Commonwealth requires the applicant to obtain;

   12. A certification signed by the applicant that the small renewable energy
   project has applied for or obtained all necessary environmental permits;

   13. A requirement that the applicant hold a public meeting. 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, the applicant shall prepare a report summarizing
   the issues raised at the meeting, including any written comments received. The
   report shall be provided to the Department; and

   14. A 30-day public review and comment period prior to authorization of the
   project.

C. The Department&#8217;s regulations shall establish a schedule of fees, to be
payable by the owner or operator of the small renewable energy project regulated
under this article, which fees shall be assessed for the purpose of funding the
costs of administering and enforcing the provisions of this article associated
with such operations including, but not limited to, the inspection and
monitoring of such projects to ensure compliance with this article.

D. The owner or operator of a small renewable energy project regulated under
this article shall be assessed a permit fee in accordance with the criteria set
forth in the Department&#8217;s regulations. Such fees shall include an
additional amount to cover the Department&#8217;s costs of inspecting such
projects.

E. The fees collected pursuant to this article shall be used only for the
purposes specified in this article and for funding purposes authorized by this
article to abate impairments or impacts on the Commonwealth&#8217;s natural
resources directly caused by small renewable energy projects.

F. There is hereby established a special, nonreverting fund in the state
treasury to be known as the Small Renewable Energy Project Fee Fund, hereafter
referred to as the Fund. Notwithstanding the provisions of &#xA7; 2.2-1802, all
moneys collected pursuant to this &#xA7; 10.1-1197.6 shall be paid into the
state treasury to the credit of the Fund. Any moneys remaining in the Fund shall
not revert to the general fund but shall remain in the Fund. Interest earned on
such moneys shall remain in the Fund and be credited to it. The Fund shall be
exempt from statewide indirect costs charged and collected by the Department of
Accounts.

G. After the effective date of regulations adopted pursuant to this section, no
person shall erect, construct, materially modify or operate a small renewable
energy project except in accordance with this article or Title 56 if the small
renewable energy project was approved pursuant to Title 56.

H. Any small renewable energy project shall be eligible for permit by rule under
this section if the project is proposed, developed, constructed, or purchased by
a person that is not a utility regulated pursuant to Title 56.

I. Any small renewable energy project commencing operations after July 1, 2017,
shall be eligible for permits by rule under this section and is exempt from
State Corporation Commission environmental review or permitting in accordance
with subsection B of § 10.1-1197.8 or other applicable law if the project is
proposed, developed, constructed, or purchased by:

   1. A public utility if the project&#8217;s costs are not recovered from
   Virginia jurisdictional customers under base rates, a fuel factor charge under
   &#xA7; 56-249.6, or a rate adjustment clause under subdivision A 6 of &#xA7;
   56-585.1; or

   2. A utility aggregation cooperative formed under Article 2 (&#xA7; 56-231.38
   et seq.) of Chapter 9.1 of Title 56.

J. For purposes of this section, &#8220;prime agricultural soils&#8221; means
soils recognized as prime farmland by the U.S. Department of Agriculture, and
&#8220;forest land&#8221; has the same meaning as provided in &#xA7; 10.1-1178,
except that any parcel shall be considered forest lands if it was forested at
least two years prior to the Department&#8217;s receipt of a permit application.

HISTORY: 2009, cc. 808, 854; 2017, c. 368; 2022, c. 688.