Virginia Law

A. The applicant shall prepare a mitigation plan for any resource for which a significant adverse impact determination has been made as a result of the analyses pursuant to 9VAC15-60-40. The plan shall detail actions by the applicant to avoid, minimize, or otherwise mitigate such impacts and shall be an enforceable part of the PBR. Mitigation included in a siting agreement and approved by a local governing body pursuant to subsection B of § 15.2-2316.7 of the Code of Virginia or zoning use conditions approved by the locality pursuant to § 15.2-2288.8 of the Code of Virginia may satisfy the mitigation obligations required for the PBR if (i) the local requirements conform to the regulations established by DEQ and (ii) the local requirement is incorporated as a specific condition of the PBR approval.

B. Mitigation measures for significant adverse impacts to wildlife shall include the following:

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 9VAC15-60-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half 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 through October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 through August 31) and one mile beyond the northern and southern reaches of the disturbance zone (sea turtle nest survey zone) between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and nonnesting emergences.

b. If construction is scheduled during the nesting season, 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. Proposed project lighting shall be submitted to DWR and the U.S. Fish and Wildlife Service for approval prior to construction.

3. For projects located in part or in whole within zone 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the CAPZ map, contribute $1,000 per MW of rated capacity, or partial MW thereof, to a fund designated by the department in support of scientific research investigating or minimizing the impacts of projects in CAPZ on avian resources. Payment of mitigation fee is due at the time of application submittal.

C. Mitigation measures for significant adverse impacts to historic resources shall include the following:

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the 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 cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project shall be mitigated through archaeological data recovery approved by DHR and DEQ.

D. Mitigation measures for significant adverse impacts to prime agricultural soils shall include the following:

1. For prime agricultural soils disturbed by the project, the applicant shall provide mitigation by a conservation easement for prime agricultural soils within the mitigation district at a mitigation ratio of one to one.

2. Actions to preserve prime agricultural soils on the project site shall be counted as partial mitigation per Table 1. The applicant may apply different options to different areas of the site, but options may not be combined on the same portion of the site.

Preserving soil on site shall reduce but not eliminate the requirement for an easement or in-lieu fee.

3. Implementation of a plan to maintain any of the following management alternatives in combination with onsite soil mitigation pursuant to subdivision 2 of this subsection shall decrease the required area of off-site conservation easement by 25% of the remaining obligation: managed grazing; active cropping, including hayland; or establishment and maintenance of pollinator smart habitat/vegetation, including certification and monitoring in accordance with the DCR/DEQ POLLINATOR–SMART Comprehensive Manual. The plan shall include adequate guarantees that the management alternatives will be maintained during the term of the permit and shall only count areas of the site subject to the management alternative. The plan shall be submitted with the application and approved by the department.

4. If a project is deemed to have a significant adverse impact, that is, disturb more than 10 acres of prime agricultural soils, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 11 acres of prime agricultural soils shall require mitigation for 11 acres, not one acre.

5. When significant adverse impacts affect prime agricultural soils overlain by forest land, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one. For example, disturbance of 11 acres of prime agricultural soils overlain by forest land shall require 11 acres of conserved forest land.

6. An applicant may propose innovative alternatives to the required mitigation , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found. An example could include restoration of a degraded site to restore the characteristics of prime agricultural soils. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

E. Mitigation measures for significant adverse impacts to forest land shall include the following:

1. For contiguous forest land or forest lands enrolled in a program for forestry preservation pursuant to subdivision 2 of § 58.1-3233 of the Code of Virginia disturbed by the project, the applicant shall provide a conservation easement for land containing forest land within the mitigation district at a mitigation ratio of one to one.

2. If a project shall be deemed to have a significant adverse impact, that is, disturb more than 50 acres of contiguous forest land, mitigation shall be required for the entire area of disturbance. For example, a disturbance of 51 acres of contiguous forest land shall require mitigation for 51 acres, not one acre.

3. An applicant may propose innovative alternatives to the required mitigation , provided that the notice of intent includes a statement that alternative mitigation is being proposed and directs the public where additional information on the alternative mitigation can be found. An example could include afforestation of degraded land. The department may accept innovative proposals by the applicant as alternative mitigation and adjust required mitigation ratios to reflect added benefits.

F. The requirements for any conservation easements required by this section shall include the following:

1. The applicant shall submit with the PBR application a plan to obtain any easements necessary to provide the required mitigation. The plan shall include:

a. Identification of the proposed conserved land, provided the area of conserved land may be increased or decreased subsequent to submission of the plan as needed to meet the mitigation ratios approved with the application;

b. The current use of the proposed conserved land;

c. The identity of the proposed grantor and holder of any easements;

d. A brief description of the agreements with the proposed grantor and holder; and

e. A title report confirming the ownership of the conserved land and the existence of any liens, encumbrances, or restrictions.

2. Closing on any required easements shall occur within one year of the date of issuance of the PBR, unless extended by the department for good cause. Any superior lien shall be subordinated to the easement at closing.

3. The holder of the easement shall be either (i) a holder in accordance with the Virginia Conservation Easement Act (§ 10.1-1009 et seq. of the Code of Virginia) that is accredited by the Land Trust Accreditation Commission or its designated subsidiary entity or (ii) a public body in accordance with the Open-Space Land Act (§ 10.1-1700 et seq. of the Code of Virginia).

4. A conservation easement shall contain a third-party right of enforcement as defined in § 10.1-1009 of the Code of Virginia granted to the department.

5. A conservation easement shall encumber land in the same mitigation district as the area disturbed.

6. No land shall count for purposes of mitigation that is already subject to an easement or deed restriction restricting development. However, land that is restricted by an easement acquired for the purpose of mitigating solar development as part of a banking arrangement or advance purchase and is not applied to support another benefit, such as a tax credit, may be counted for mitigation. Land that is not counted for mitigation may still be included in a conservation easement.

7. Every conservation easement for prime agricultural soils shall allow agricultural activities on the conserved land. Every conservation easement for forest land shall allow silvicultural activities on the conserved land.

8. Conservation easements shall be consistent with this chapter and Department of Forestry guidelines for forest and agriculture conservation.

9. Within 30 days of closing on any easement, the applicant shall submit to the department copies of the easement and related surveys and baseline reports required by the holder.

10. The department shall base its decision on whether the proposed conservation easement complies with the requirements of this subsection on a recommendation from the Department of Forestry. The Department of Forestry shall charge the applicant a reasonable fee to review the proposed easement.

G. As an alternative to providing a conservation easement, an applicant may pay an in-lieu fee calculated as follows:

1. The in-lieu fee for mitigation will be determined by the department by adding the projected administrative costs, including agency staff time, trustee costs, legal fees, due diligence costs, stewardship fees paid to the holder, and other associated fees, to the predicted cost of a perpetual easement necessary to protect the required acreage of land. The predicted cost of a perpetual easement for prime agricultural soil shall be equal to the difference between the average fair market value of agricultural land and the average cropland use value (without risk) for Land Class I and Land Class II in the agricultural statistics district in which the project is located. The predicted cost of a perpetual easement for forest land shall be equal to the difference between the average fair market value of forest land and the average forest use value for good site productivity in the forest inventory analysis survey unit in which the project is located. The department will publish the values for each district annually based on data from the Virginia State Land Evaluation Advisory Council.

2. The Department of Forestry shall serve as the trustee to administer the in-lieu fees in trust with the purpose of acquiring conservation easements consistent with the acreage and location of the mitigation requirements. Notwithstanding the requirements of this subdivision, the trustee shall have discretion to combine fees from different applicants and make the final determination of the acreage and location of conservation easements within the mitigation district where the disturbance occurs.

3. The in-lieu fee shall be paid to the trustee prior to beginning construction as directed by the department at the time of issuance of the PBR. Payment of the in-lieu fee in full shall satisfy the mitigation obligations without waiting for acquisition of easements by the trustee. The trustee shall pay the administrative costs of the department for the in-lieu fee program from the in-lieu fees received.