Virginia Administrative Code › Title 9 - ENVIRONMENT › Agency 15 - DEPARTMENT OF ENVIRONMENTAL QUALITY › Chapter 40 - SMALL RENEWABLE ENERGY PROJECTS (WIND) PERMIT BY RULE › Part II - Permit by Rule Provisions › Section 9VAC15-40-60 - Mitigation plan

Current through Register Vol. 40, No. 24, July 15, 2024
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.