IMPORTANT UPDATE FOR SOLAR PROJECT DEVELOPERS

On March 18, 2024, we issued an alert addressing Virginia Department of Environmental Quality’s (VDEQ’s) recently proposed Virginia Stormwater Management Handbook, Version 1.0 (Handbook). The proposed Handbook is available online here; see also here. As a reminder, comments on the proposed Handbook must be submitted to VDEQ by March 27, 2024, and the Handbook in final form will take effect July 1, 2024. This updated alert provides welcome news for solar developers regarding a significant concern we raised in the March 18 alert.

The underlying concern related to implementation of VDEQ’s recent guidance that solar panels will be considered unconnected impervious surface area for purposes of stormwater runoff calculations.¹ As currently formulated in Section 5.500 of VDEQ’s Guidance Memo No. 22-2012 (also known as the Technical Design Guide), this recent guidance provides that solar panels should be considered as unconnected impervious surfaces.  However, it also includes certain limited, but significant, variations and grandfathering exemptions helpful and necessary to the solar development industry for transitioning the guidance implementation. One of these significant exemptions is for “submission, and acceptance, of an initial interconnection service request application to a regional transmission organization or electric utility,” if these steps occur by December 31, 2024.

In our March 18 alert, we noted that the proposed Handbook language addressing this grandfathering exemption scenario was very different from that set forth in the Technical Design Guide Section 5.500. The proposed Handbook text reads in relevant part as follows:

Additionally, if an owner or operator wants to confirm whether the stronger post-development stormwater requirements will apply to a particular project, “Interconnection Approval” may also be demonstrated by PJM approval of a new service request on or before April 14, 2022.

The difference in the terms of this exemption scenario, particularly as to the grandfathering deadline for qualification, would be of major concern for many planned solar development projects. 

We are pleased to report, however, that VDEQ considers the difference in text to be a drafting error that will be corrected when finalizing the Handbook before it becomes effective. This assurance comes via VDEQ management communications with us after the issuance of our March 18 alert. To this end, VDEQ has indicated that it will change the problematic language to reflect the same scope of exemption scenario, with the same grandfathering deadline of December 31, 2024, as set forth in Technical Design Guide Section 5.500. VDEQ’s clarification in this regard before the end of the public comment period is excellent news for the solar development industry.

While we have assurance from VDEQ that it will address this exemption language issue as discussed above, other aspects of the Handbook and its treatment of stormwater associated with solar projects still warrant attention, and perhaps comment to VDEQ. Again, comments are due by March 27, 2024, and can be submitted via the Virginia Regulatory Town Hall website here.

As always, for more information or any questions, please contact any of the authors or the Williams Mullen attorney with whom you may already work.