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To: Virginia Department of Environmental Quality
From: Rick Webb; 481 Ravens Run Road, Monterey, VA 24465; 540‐468‐2881; rwebb@vawind.org
Re: Comments and Questions on Proposed Regulation; 9VAC15‐40. Small Renewable Energy
Projects (Wind) Permit by Rule (adding 9VAC15‐40‐10 through 9VAC15‐40‐140)
The Virginia Department of Environmental Quality (DEQ) has proposed flawed regulations to implement
flawed Permit by Rule legislation for wind energy projects.
The first problem with both the legislation and the proposed regulations is the definition of a "small
wind energy project," which is specified as any wind project of less than 100‐MW rated capacity. Today's
2‐MW turbines can be spaced at about seven turbines per mile of ridgeline. A 100‐MW wind project can
thus occupy seven miles of ridgeline. Under the new PBR, western Virginia's mountain counties may
soon be facing a proliferation of 500‐foot turbines, permitted in seven‐mile increments with limited
environmental review and mitigation requirements.
The issues addressed by the proposed regulations and DEQ explanatory material include analysis of
potential environmental impacts, mitigation plans, and public opportunity for comment on permit
applications. The proposed regulatory treatment of these topics presents a number of problems that
collectively will result in a failure to reliably protect the environment and public welfare. Although these
deficiencies are due in large part to limitations associated with the legislation, it is none‐the‐less clear
that the proposed regulations do not, as DEQ contends, ". . . include conditions and standards necessary
to protect the Commonwealth's natural resources." If indeed the DEQ has its hands tied by the
legislation, there is no justification for pretending otherwise.
Some of the problems with the draft regulations are addressed here. Specific questions for the DEQ
concerning the draft regulations and implementation of the PBR program are indicated.
Analysis of potential environmental impacts
The level of analysis and site specific data collection is primarily dependent upon the applicant's analysis
("desktop survey") of map‐documented wildlife use in a defined disturbance zone. With the exception of
separate requirements for bats and raptors, site‐specific data collection is only required when the
applicant determines that state‐listed Threatened and Endangered (T&E) species or Species of Greatest
Conservation Need (SGCN) are present within the disturbance zone. Interior forest habitat, upon which
a number of wildlife species depend, is generally defined as forest area that is greater than 100 meters
(or about 300 feet) from cleared areas. Wind projects on Appalachian ridges usually require extensive
forest clearing for turbine sites, access roads, and transmission corridors. The 3 to 5 acres of disturbance
required per turbine (see http://www.vawind.org/Assets/Docs/LCS‐100805.pdf; Section 6.3 and Appendix 7)
will impact substantially more interior forest habitat than acknowledged by DEQ's disturbance zone
definition. The limited requirement for site specific data collection raises questions:
1. How was it determined that a disturbance zone defined as the directly impacted area plus a
margin of 100 feet provides a sufficient criterion for evaluation of potential wildlife impacts?
2. How reliable and complete is the currently available map‐documented information concerning the
presence of T&E and SGCN species?
3. If there are gaps or uncertainties in mapped T&E and SGCN wildlife species data for the project
area, will the DEQ accept an applicant's determination that there is no evidence for the presence
of T&E and SGCN species?
4. Given that the legislation does not appear to impose any such limitation, how was it determined
that only T&E and SGCN wildlife species warrant site‐specific data collection?
The proposed regulations require raptor migration surveys and acoustic surveys for the presence of
bats. However the proposed regulations do not specify protocols or standards for the conduct of these
surveys. Likewise, the proposed regulations do not specify protocols for analysis of map‐documented
information on wildlife use, breeding bird surveys, habitat surveys, or follow‐up mist‐netting or harp‐
trapping surveys for bats. This raises additional questions:
5. What protocols or standards does the DEQ intend to require, and if it is the intent of the legislation
to create a PBR process that clearly establishes permit review requirements "upfront," is it not
necessary to include explicit language in the regulations concerning protocols and standards
required for all surveys, data collection, and analysis?
6. If the public is to be provided an actual opportunity to make informed and meaningful comments
on the proposed PBR regulations, doesn't the public need an opportunity to examine and
comment on the protocols and standards for required surveys, data collection, and analysis?
The draft regulations require that a permit applicant prepare a Wildlife Report "summarizing the
relevant findings of the desktop and field surveys." The draft regulations do not specify that the
applicant shall provide, or even retain, actual data, records of analysis, and consultant or contractor
reports. Without this information there is no opportunity for the DEQ, other resource management
agencies, or the public to examine the data and verify the integrity of the analysis. This lack of
transparency is inconsistent with normally applied standards for scientific analysis and regulatory
decision making. If indeed the DEQ does expect that full access to wildlife data and analysis results will
be provided, it needs to be explicitly required by the regulations. To state these concerns as questions:
7. Does the DEQ plan to require access to all wildlife data and analysis results?
8. Does the DEQ plan to make all wildlife data and analysis results available to other resource
management agencies and the public?
It is notable that the draft regulations do not address potential impacts to aquatic resources. Industrial‐
scale wind energy projects have the potential for causing severe erosion and sedimentation, as well as
alteration of stormwater runoff patterns, with significant impacts on receiving waters. The PBR process
will authorize projects up to about seven‐miles in length along mountain ridgelines, requiring extensive
development of access roads, transmission corridors, and grading for turbine, substation, and concrete
plant construction sites. This disturbance will occur on or adjacent steep and unstable terrain, with
potential impacts to multiple drainage basins. Unless development on this scale is carefully designed
and controlled, significant construction and post‐construction impacts to receiving waters can be
expected. Given that most projects will occur along forested mountain ridges and in relatively
undisturbed terrain, the affected receiving waters will include many of Virginia's highest quality streams,
including designated exceptional waters and native brook trout streams.
The DEQ explains that the omission of aquatic resource protection conditions and standards is due to
reliance on pollution control programs that are already in place and implemented by local counties and
the Department of Conservation and Recreation (DCR). The problem here is that the wind energy
projects that would be permitted under the PBR process will greatly exceed the geographic scale and
potential impact of projects that the counties and the DCR generally review and inspect. Both the
counties and the DCR have limited resources to address this type of development. Based on the current
performance of existing programs, it is unreasonable to expect that aquatic resources will be adequately
protected from the impacts of industrial‐scale wind energy development. Even without the additional
responsibility for wind energy projects, the DCR is only able to inspect a relatively small fraction of
projects that have Erosion and Sediment Control (E&SC) plans. The record of many local counties, which
have primary responsibility for reviewing E&SC Plans, is frankly dismal, and projects are allowed to go
forward with seriously non‐compliant plans. The DEQ may be justified in arguing that water resource
impacts associated with wind energy development are not its responsibility. But, again, it is misleading
for the DEQ to pretend that the proposed regulations ". . . include conditions and standards necessary
to protect the Commonwealth's natural resources."
Mitigation plans
The draft regulations require the permit applicant to prepare mitigation plans only if:
• state‐listed T&E wildlife are found within the disturbance zone
• bats have been detected or a hibernaculum exists within the disturbance zone
• the applicant's analysis indicates that the integrity of an historic resource will be significantly
diminished
Actual mitigation plan requirements are remarkably limited, and as the DEQ explains, it has no authority
to deny a permit or even require relocation of turbines. There is apparently no condition or potential
level of environmental harm that will stop a project from going forward or even require substantial
project modification. To address this bleak observation as a question:
9. Is there a threshold of potential environmental harm that will result in permit denial or substantial
project modification?
In the case where T&E wildlife are found within the disturbance zone, the mitigation requirement is
simply that all reasonable measures be taken to avoid significant adverse impacts, but if that is not
possible the applicant shall explain and propose additional "actions" that are reasonable. A question for
the DEQ:
10. Can wind energy projects be permitted in cases where significant adverse impacts to state‐listed
T&E wildlife cannot be avoided?
In the case where a proposed project is likely to significantly diminish the integrity of an historic
resource, the mitigation requirement is that the impact shall be minimized to the extent practicable
through design of the project or installation of vegetation or other screening. If impacts cannot be
avoided by such measures, then the applicant shall develop a "reasonable and proportionate mitigation
plan that offsets" the adverse impact. A question for the DEQ:
11. What does this mean; does it mean that an applicant might satisfy mitigation requirements by
providing protection for historic resources other than the particular historic resource that is
adversely affected by the project?
In the case of bats there are at least specific, though very limited, mitigation measures required. The
DEQ explains that mitigation will be required for bats because there are mitigation measures available
that work. Moreover, the DEQ explains that there are no mitigation requirements for birds or other
wildlife because there are no mitigation measures that work.
The mitigation measure for bats is project curtailment during the low‐wind periods when bats are most
vulnerable. However, curtailment, which means shutting down turbines, is only required up to the
financial equivalent of $5,000 per turbine, including administrative cost and loss of federal tax
incentives. This cost cap is clearly a coup for the wind industry representatives on DEQ's regulatory
advisory panel. The equivalent cost cap on curtailment conditions imposed by the State Corporation
Commission (SCC) on the proposed Highland New Wind Development project was about $7,900 per
turbine in the first year of operation, but similar in subsequent years. But importantly, the SCC provided
that the cost cap will be revisited and possibly increased if, after three years, the "the carnage
continues." The DEQ's proposed regulations, in contrast, provide no such investor‐risky provision. The
cost of bat mortality is reduced to a reliably fixed cost of doing business. All of this raises additional
questions for the DEQ:
12. What criteria or rationale support the decision to limit money spent on, or cost of, avoidance of
bat mortality to $5,000 per turbine?
13. Has the DEQ considered the cumulative impact on bat populations due to the combined impacts
of white‐nose syndrome and turbine‐related mortality?
14. Why hasn't the DEQ required curtailment or turbine shutdown to protect raptors and migratory
birds?
Mitigation measures for significant adverse impacts to wildlife include post‐construction monitoring for
avian and bat fatalities associated with the wind project. Other than specifying that fatality estimates
based on monitoring shall account for scavenger removal and searcher efficiency, the draft regulations
again do not specify protocols and standards, including search methods, search frequency, search area,
and searcher qualifications. It is also not indicated if the project operator will provide actual monitoring
data or only estimates. It is also not indicated if the DEQ or any other natural resource management
agency will exercise oversight and inspection of the monitoring. Questions for the DEQ include:
15. Will the DEQ review and approve monitoring plans, and what criteria, including search methods,
search frequency, search area, and searcher qualifications, will the DEQ consider in approving
monitoring plans?
16. Will the DEQ require submission of all monitoring data, and will this data be made available to the
public?
17. Will the DEQ or other natural resource management agencies have unrestricted access to project
sites for inspection and oversight of monitoring programs?
18. Will project operators and contractors be required to immediately notify the DEQ if state‐listed
T&E or federally‐listed endangered species are harmed or killed at wind project sites?
Public participation
The public participation requirements, including a public meeting provision and an opportunity to
submit written comment on the technical and regulatory aspects of a proposed project, will be
implemented by the permit applicant. The language of the draft regulations requires that a copy of all
documentation to be submitted to the DEQ in support of the project will be made available to the public
at an accessible location in the vicinity of the project. The draft regulations also state that following the
public meeting and public comment period, the applicant shall prepare a report summarizing the issues
raised by the public, including any comments received and the applicant's response to those comments.
Questions for the DEQ concerning this process include:
19. Will the documentation to be made available to the public for review during the comment period
be accessible during business hours throughout the comment period or only during limited times
scheduled by the applicant?
20. Will the public be provided an opportunity to copy the documentation made available to the
public for review during the comment period?
21. Will the documentation made available to the public for review during the comment period
include the applicant's Wildlife Report and all related data and analysis, the applicant's mitigation
and monitoring plans, and the applicant's analysis of the potential impacts of the project's
operation on the attainment of national ambient air quality standards?
22. What structure or procedural rules will be followed in the conduct of the public meeting?
23. Will the written comments submitted by the public to the applicant be provided to the DEQ, and
will the public have access to the applicant's summary of and response to comments.
24. Will the public be provided an opportunity to comment on the final documentation considered by
the DEQ in its review of the application, including an opportunity to comment on modifications
made after the prescribed public comment period?
Cumulative Impacts of Multiple Projects
As indicated above , a "small wind energy project," as defined in the draft regulations, would include up
to a 100‐MW project, which by any reasonable definition is a "large wind energy project." A 100‐MW
project could consist of a string of 50 turbines and connecting roads occupying seven miles of mountain
ridgeline. Apparently the notion that the PBR will apply only to small wind energy projects has provided
the rationale, both in the General Assembly and in the DEQ, for the relaxed environmental review and
mitigation requirements that the PBR will establish. Despite pretensions to the contrary, the regulations
proposed by the DEQ will provide only minimal protection for western Virginia's natural resources from
degradation associated with what is, in fact, large‐scale industrial development.
Compounding this basic failure is the additional failure to address the cumulative impact of multiple
projects that are adjacent or in geographic proximity. There is nothing in the regulations or in the
background material to suggest that the DEQ has considered the impacts of multiple projects, despite
the fact that the wind industry is actively prospecting for development opportunities in western Virginia.
The proposed regulations fail to objectively consider the environmental impacts of individual projects,
and there is simply no consideration of the environmental impacts of multiple projects. The question for
the DEQ is:
25. Does the DEQ recognize that wind energy development in western Virginia will involve multiple
separate projects, and how does the DEQ justify proposal of review and mitigation requirements
for wind projects as if the effects of individual projects will occur in isolation from the effects of
other projects?