Virginia Law

A. 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. The mitigation plan shall include a description of the affected wildlife or historic resources, or both, and the impact to be mitigated; a description of actions that will be taken to avoid the stated impact; and a plan for implementation. If the impact cannot reasonably be avoided, the plan shall include a description of actions that will be taken to minimize the stated impact and a plan for implementation. If neither avoidance nor minimization is reasonably practicable, the plan shall include a description of other measures that may be taken to offset the stated impact; and a plan for implementation.

B. 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 9VAC15-40-40 A or 9VAC15-40-40 C 1.

2. For proposed projects where the disturbance zone is located on or within one 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 - October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 - 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 non-nesting 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 avian resources within any of the Coastal Avian Protection Zones that are referenced in 9VAC15-40-40 A 5, the applicant shall take all reasonable measures to avoid significant adverse impacts, or shall demonstrate in the mitigation plan what significant adverse impacts cannot be practicably be avoided and why additional proposed mitigation actions are reasonable.

4. For bats, the mitigation plan shall include measures to curtail operation of wind turbines on low wind speed nights when bats are likely to be active within the disturbance zone and to monitor the efficacy of these measures; however, the combined cost of mitigation and post-construction monitoring, in each year after year one, shall not exceed 120 hours of curtailment per year per turbine, averaged. The combined cost of mitigation shall consist of lost revenue from curtailment of wind turbines, including lost production tax credits.

5. Post-construction monitoring shall be designed to achieve the following:

a. Estimate the level of avian and bat fatalities associated with the wind energy project, accounting for scavenger removal and searcher efficiency; however, estimates of avian and bat fatalities shall not be required for areas seaward of the mean low-water shoreline.

b. Investigate the correlation of bat fatalities with project operational protocols, weather-related variables, and the effectiveness of operational adjustments to reduce impacts.

6. Post-construction wildlife mitigation and management shall include the following:

a. Post-construction mitigation. After completing the initial one year of post-construction monitoring, the owner or operator shall submit the first year's monitoring data and a revised mitigation plan detailing the monitoring and mitigation actions expected to be implemented for the remainder of the project's operating life. Such mitigation actions shall be designed to address the impacts revealed by the initial year of post-construction monitoring. One year after the revised mitigation plan is submitted, and annually thereafter, the owner or operator shall submit a report consisting of the results of ongoing monitoring, including data and supporting documents, an explanation of how the mitigation measures reflect results indicated by the monitoring data, and documentation showing expenditures and lost revenues attributable to curtailment, other mitigation actions, and monitoring.

b. Amendment of mitigation plan. After three years of post-construction mitigation efforts, the owner or operator of the project may initiate a consultation with the department to propose amendments to the mitigation plan. The owner or operator shall submit any proposed amendments of the mitigation plan to the department. The department may approve the proposed amendments if the department determines that the proposed amendments will avoid or minimize adverse impacts to a demonstrably equal or greater extent as the mitigation measures being implemented at that time. Alternatively, the department may approve the proposed amendments to the mitigation plan if the owner or operator demonstrates that the mitigation measures being implemented at that time are not effectively avoiding or minimizing adverse impacts, in which case the owner or operator may propose and the department may approve ways of offsetting ongoing adverse impacts, such as funding research or preserving habitats.

C. 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 wind 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 can not 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.