Virginia Regulatory Town Hall
Department of Environmental Quality
Department of Environmental Quality
Small Renewable Wind Energy Projects Permit by Rule [9 VAC 15 ‑ 40]
Action Establishment of permit(s) by rule for the construction and operation of small wind energy projects
Stage Proposed
Comment Period Ended on 8/20/2010


All comments for this forum
Back to List of Comments
7/29/10  7:58 am
Commenter: Amanda


Three comments hidden? Wonder if this one will get through?

Motorhome Ireland

CommentID: 14252

7/29/10  7:59 am
Commenter: John



Interesting area.


CommentID: 14253

7/29/10  8:03 am
Commenter: Jane

Wind energy

I'm all behind these wind energy programmes. 


Fire pits

CommentID: 14257

8/1/10  8:10 am
Commenter: Himalayan Scenery

Small Renewable Wind Energy Projects

Small Renewable Wind Energy Projects will be very popular in the incoming days. Extensive research and massive amount of funds have to generated for more research work in order to reduce fossil fuel dependency.




Trekking in Nepal



CommentID: 14271

8/1/10  11:58 am


Renewable Energy is very important therefore any project about renewable energy should be supported.


Andy Rammell

Fitness Trainer

Burn Belly Fat

CommentID: 14276

8/18/10  2:00 pm
Commenter: John Evans, Army Corps of Engineers, Water Resources Division

Army Corps formal comments for wind PBR.


Renewable Energy Policy Manager
Ms. Carol C. Wampler 
Department of Environmental Quality
629 East Main Street
Richmond, Virginia 23219
Dear Ms. Wampler:
These are Norfolk District, Corps of Engineers formal comments regarding 9 VAC 15-40, the Small Renewable Energy Projects (Wind) Permit by Rule (PBR) proposed regulation. We believe that the Virginia Regulatory Town Hall document regarding this regulation is incorrect under “Requirement more restrictive than federal”, where the document states that, “There are no applicable federal requirements.” Indeed, activities proposed by the regulation must meet a great number of federal requirements and applicants cannot construct PBR projects without federal permits issued or verified by the Corps of Engineers.
This letter provides information within the geographical context of the 3-mile (offshore) State (of Virginia) territorial limit to also include the Virginia portion of the Chesapeake Bay and associated tributaries. The information provided below is within the potential use and resource conflict areas within the Corps of Engineers business lines.
The regulatory missions of the Corps of Engineers originate via Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act of 1972. A Department of the Army permit under Section 10 and Section 404 will be required to install structures, perform work, dredge, and discharge dredge and fill material in all waters of the United States (including adjacent wetlands and outer continental shelf waters beyond the Virginia 3-mile territorial limit). Each proposed wind turbine generator site may have fill and/or discharge impacts, as the structure’s foundation will bring new material to the surface for each event. Our previous experience with these energy projects indicates that riprap, a discharge of fill material, is likely at the toe of each wind turbine generator to prevent scour. Additionally, the power cable between the site and shore will or may have an impact (dredging), unless completed by directional drilling. Where the cable comes ashore, there may be impacts to wetlands, mudflats, shallow water areas or submerged aquatic vegetation. Each of these situations will require review on a case by case basis.
In evaluating the permit application, we will conduct a public interest review that weighs the foreseeable benefits of the proposed project against reasonably foreseeable detriments. Prior to making a decision, we will fully consider the views of the Federal and State resource agencies, local government, and the general public. Although our evaluation will focus on navigational and environmental impacts, we will consider all relevant factors of the public interest, including impacts to migratory birds, ducks, marine mammals and fish, recreation, cultural/archaeological resources, and aesthetic/visual. We also note that offshore mining (for beach construction and/or beach nourishment activities) sites are important aquatic resources and may also affect the suitability of a site for wind energy projects. We may be required to consider alternative locations which may have less impact, and actions to avoid and minimize impacts (mitigation). National Environmental Policy Act (NEPA) documentation will be required, which addresses all of these relevant issues. This documentation could be in the form of an Environmental Impact Statement (EIS) or Environmental Assessment (EA) depending on the number and location of the wind turbine generators and the significance of the potential environmental impacts.
Further, the Corps' District Commander is required to consult with the U.S. Fish and Wildlife Service and/or the National Oceanic and Atmospheric Administration consistent with the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) if the issuance of a Corps permit may affect threatened or endangered species or their critical habitat. In that the North Atlantic right whale, Eubalaena glacialis, and several sea turtles, including the loggerhead sea turtle, Caretta caretta, and the Kemp’s ridley sea turtle, Lepidochelys kempi are threatened and endangered species in this area there is the possibility of a "may affect" determination. A permit applicant must be aware that endangered species consultation can take over one year after the receipt of a complete Corps permit application.
The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), also requires all Federal agencies to consult with the National Marine Fisheries Service (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). The Corps will coordinate with NMFS on EFH after an applicant submits a permit application if the Corps determines that any proposed Corps permit activity may adversely affect EFH.
The District Commander must also comply with Section 106 of the National Historic Preservation Act if the issuance of a permit could affect historic resources. The Virginia Department of Historic Resources (VDHR) has mentioned the potential of wind turbines to affect the "viewshed" of the Cape Henry Lighthouse. A permit applicant must understand that the Corps is required to complete coordination with VDHR and possibly the Advisory Council on Historic Preservation if the proposed Corps permit activity may affect historic properties, including the viewshed.
We recommend the preliminary identification of restricted areas, security and danger zones, and other areas deemed undesirable/unsuitable for the placement of wind turbine generators by the resource agencies. The identification of such areas would be a first step in avoiding and minimizing navigational and environmental effects, and identifying potential subaqueous areas with less resource conflicts.
There are 59 shallow draft and 13 deep draft navigation projects currently authorized within the PBR area. Please note that there are other navigation channels within the PBR area which are not within the civil works authority of the Corps of Engineers. You will need to consult with others (U.S. Navy, U.S. Coast Guard, etc.) for additional information on these areas. In addition, there are restricted areas and danger zones that could affect the suitability of a specific site wind energy projects. 33 CFR 334 provides specific latitude and longitude locations. NOAA has taken this information and has overlaid it on all navigation charts. As the information is readily available on charts, it would be prudent to overlay the navigational channels, restricted areas and danger zones with any PBR guidance or documentation. Impacts to those areas will be a part of any public interest review for a permit application and permit decision.
We can make no decision on whether to issue or deny a permit until an applicant submits a permit application. Once we receive a permit application we will, if required, issue a public notice for the project. As a part of the permit process, the applicant will provide appropriate NEPA documentation, we will determine the size and scope of project impacts, and we will evaluate public comments. In order to issue a permit, the Corps must determine that the project complies with the 404(b)(1) EPA Guidelines (in the case of 404 actions); and we must also find that the project is not contrary to the public interest. If you have any questions regarding these comments, please contact John Evans in the Regulatory Branch, at or call 757-201-7794.
Elizabeth G. Waring
Acting Chief Water Resources Division
CommentID: 14343

8/20/10  10:38 am
Commenter: Rick Webb, Virginia Wind (

Flawed Regulations Based on Flawed Legislation
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 up to 100?MW rated capacity. By any reasonable definition a 100-MW wind energy project is a "large wind energy project."
A 100?MW project could consist of a string of fifty 500-foot turbines and connecting roads occupying seven miles of mountain ridgeline. Apparently the notion that the Permit-by-Rule (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. There is apparently no condiion or potential level of environmental harm that will stop a project from going forward or even require substantial project modification.
My complete comments, which are posted on, have been submitted directly to the DEQ. 
CommentID: 14357

8/20/10  11:42 am
Commenter: Richard M. Laska, Laska's Grove

Circumventing of established regulations

The proposed rule, as written, appears to cicumvent the requirements of the National Historic Preservation Act (NHPA).  Under that Act, the Commonwealth of Virginia is legally obligated to conduct a formal review of any proposed project which may significantly impact any site on the National Register of Historic Places.  Such a review, quite obviously, requires that a site-by-site survey be conducted prior to issuance of a permit. 

Such a survey could be considered unnecessary for projects which have very little chance of intruding on the historic values protected under NHPA.  However, 400-foot-tall industrial wind turbines can intrude on the viewshed for 20 miles or more.  Hence, a dsiciplined survey and review of each and every such historic site within the viewshed is required prior to issuance of any permit.  An adequate survey would be, de facto, incompatible with the type of autonomic permit issuance system envisioned in the proposed rule.

If the proposed Rule does not include adequate procedures to abide by the State's legal obligations under NHPA, then the proposed rule is fatally flawed.

CommentID: 14359

8/20/10  12:03 pm
Commenter: Richard M. Laska, Laska's Grove

Incompatibility with existing agreements/interests

The proposed rule fails to take into consideration existing agreements with, and interests of, other governmental entities.  Specifically, adjacent States and the Federal government.  For example, North Carolina has a legal ban on ridgeline structures which exceed 100 feet.  Industrial wind turbines can exceed 400 feet in height.  Does Virginia intend to dismiss as irrelevant the concerns of North Carolina?

Likewise, sanctified places such as Arlington National Cemetery deserve greater consideration than the mindless, automatic approval of towering, noisy industrial turbines on their borders.  The same applies to long-established plans and zoning requirements.

Is the Commonwealth of Virginia, at long last, utterly indifferent to the concerns and clearly-stiplulated interests of its neighbors? 

CommentID: 14360

8/20/10  2:22 pm
Commenter: Pamela C. Dodds, Ph.D., Registered Professional Geologist

Comments on the Small Renewable Wind Energy Projects "Permit by Rule"

The basis of megawatt nameplate capacity for categorizing wind projects is flawed and demonstrates a lack of understanding concerning wind power.  Residential wind turbines are designed to produce 100 kilowatts, or less, of electricity.  These wind turbines are usually less than 30 feet tall, and the excess electricity produced can be stored in batteries for later use.  Prudent use of residential wind turbines allows homeowners to greatly reduce or even eliminate the use of electricity from an electric company.  Such residential wind turbines are totally different from the industrial scale wind turbines used for communities or used in an array on, for example, a mountain ridge.  Examples of residential wind turbines can be studied on the following websites:,,, and

Industrial scale wind turbines generally have a nameplate capacity of 1.5 megawatts (such as GE wind turbines) to 2.5 megawatts (such as Clipper wind turbines) and are greater than 427 feet tall.  These wind turbines require "parasitic loads", that is, they use electricity from the grid in order to operate properly.  The following description was presented by Mr. David Friend, who is a wind developer with U.S. WInd Force, LLC, in his rebuttal testimony for Case No. 05-1740-E-CS before the West Virginia Public Service Commission: "These parasitic turbine loads include electric pitch system, yaw motors, oil heaters, oil pumps for bearings and gearbox, cooling fan for generator and turbine controller.  These components typically use 7-9kW (average) during periods when the turbines are not operating...".  This information confirms that industrial scale wind turbines cannot cause coal-fired generating plants to be shut down because the electricity produced by reliable power, such as coal-fired or nuclear, is required in order for the industrial scale wind turbines to operate at all.  Additionally, a back-up, spinning reserve is required to be available at all times.  This spinning reserve is produced by coal-fired or nuclear plants because they produce reliable electricity, whereas the electricity produced by industrial scale wind turbines is ever-changing and volatile and thus incapable of providing a spinning reserve.  Additionally, any electricity produced by industrial scale wind turbines must be used immediately; electricity from industrial scale wind turbines cannot be stored in batteries.

Therefore, the categories should be based on a more realistic division of the nameplate capacity of individual wind turbines used for different purposes: those at the residential level as distinguished from industrial scale wind turbines.

The protection of Virginia's natural resources relies on educated evaluation of the natural resources and enforcement of Virginia's environmental laws and regulations.  It is irresponsible to rely on environmental audits conducted for financial institutions or investors to provide a complete study of environmental conditions.  In the "Agency's Comments" document concerning the "Permit by Rule", it is stated that environmental audits conducted for financial institutions and investors provide sufficient environmental scrutiny to assure that "major environmental liabilities do not exist at the proposed project site."  This statement indicates a misconception that environmental audits are conducted in order to assess and protect natural resources.  In my previous position working fo an environmental consultant firm, I conducted environmental audits for financial institutions and investors and I can confirm that the intent of the environmental audit is to determine if there are any hazardous materials at the site which could create environmental concerns if they were disturbed by construction activities.  It is not the intent of an environmental audit to protect natural resources.  It is the responsibility of the DEQ to provide guidance and scrutiny of wind project construction plans and activities in order to properly assess violations and threats agains Virginia's natural resources.

As recommended by the Virginia Department of Game and Inland Fisheries (DGIF), DEQ should require a survey conducted by the wind company to determine potential impacts not only on threatened and endangered species, ut also on Tier 1 and Tier 2 Species of Greatest Conservation Need (vertebrates only).  The reason provided by DEQ that the Tier 1 and Tier 2 Species of Greatest Conservation Need were not included in the survey requirements is that they probably would not occur in the areas where wind projects would be proposed for construction.  The likely areas proposed for wind project construction are those areas designated as having Category 3 winds. The Appalachian mountains are included as areas having Category 3 winds.  It is critical to recognize that headwater areas are located in the Appalachian mountains.  These headwater areas provide the base of the food chain necessary for downstream organisms to survive far beyond the "disturbance zone".  The Environmental Protection Agency (EPA) has provided data showing that negative impacts to headwater streams in the Appalachians cause negative impacts to species in Chesapeake Bay.  EPA recommends a watershed-based approach and is mandated to show progress in this regard to Congress.  Given that DEQ limited the concern"trigger" to threatened and endangered species, stating it would be too costly to industry to establish safety for other vertebrates, the DEQ should have a study conducted or draw upon EPA data to have a realistic interpretation of the impact at the sub-watershed and larger watershed levels.  This, especially, given that the Virginia Department of Conservation and Recreation (DCR) has manuals explaining the impacts at sub-watershed and larger watershed levels.  The destruction of headwater areas results in the death of aquatic organisms which constitute the base of the food chain for the downstream vertebrates (fish, birds, etc.). 

DEQ should adopt the alternative of NO BUILD in areas where bats are known to roost in trees or hibernate in caves within a 50 mile radius of the proposed wind project and in areas within any 300 mile migratory pattern.  It has already been established in studies by bat experts that bat mortality is so great that wind projects are referenced with regard to the number of bats killed per turbine.  As many as 3,000 bats are killed annually at the Mountaineer Wind facility at Backbone Mountain, Tucker County, WV.  Thomas H. Kunz, et al (Assessing Impacts of Wind-Energy Development on Nocturnally Active Birds and Bats: A Guidance Document, Journal of Wildlife Management 71(3):2449-2486; 2007) reprots the following: "Large numbers of bats have been killed at wind-energy facilities constructed along forested ridge tops in the eastern United States (GAO 2005, Kunz et al. 2007, NRC 2007, Arnett et al. 2008).  The highest fatality rates at these facilities have ranged from 15.3 bats/MW/year at the Meyersdale Wind Energy Center, Somerset County, Pennsylvania to 41.1 bats/MW/year at the Buffalo Mountain Wind Energy Center (Fiedler 2004, Kunz et al. 2007, NRC 2007, Arnett et al. 2008).  A recent follow-up study conducted at the Buffalo Mountain site reported fatality rates of 53.3 bats/MW/year at 3 small (0.66-MW) Vestas V47 wind turbines (Vestas Wind Systems A/S, Ringkobing, Denmark) and 38.7 bats/MW/year at 15 larger (1.8-MW) Vestas V80 turbines (Fiedler et al. 2007).  Another recent study, conducted at the Maple Ridge Wind Power Project, Lewis County, New York, USA estimated bat fatalities ranging from 12.3 bats to 17.8 bats/MW/year (depending on carcass search frequency) at 1.65-MW Vestas wind turbines (Jain et al. 2007)."

Additionally, the slaughter of bats by industrial scale wind turbines cannot be mitigated because it is the mating behavior of male bats to seek the highest tree, which they perceive to be the wind turbine itself.  On their flight to the top of the industrial scale wind turbine, the male bats are slaughtered ("Causes of Bat Fatalities at Wind Turbines: Jypotheses and Predictions", Paul M. Cryan and Robert M.R. Barclay, Journal of Mammalogy, 90(6):1330-1340, 2009). 

BY eliminating the concept of metrics concerning bat mortality, the DEQ is simply ignoring current available information and allowing the wind companies a license to slaughter bats.  THis is in violation of the Code of Virginia, Section 29.1-521, which states that it is illegal to "take,... kill,... by any means whatever... any wild bird or wild animal... except as specifically permitted by law and only by the manner or means and within the number stated.

The "trigger" proposed by DEQ for mitigation concerning bat mortality is a violation of Virginia's laws protecting wildlife.  It is an obvious conclusion that lawsuits will result from such a provision in the "Permit by Rule".  Therefore, the DEQ should adopt the alternative of NO BUILD in areas where bats are known to roost in trees or hibernate in caves within a 50 mile radius of the proposed wind project and in areas within any 300 mile migratory pattern.

By the 2009 statute, DEQ is placed in the position to evaluate cumulative damage to the environment, not simply viewing each project as a deparate entity.  The U.S. Department of Energy published "20% Wind Energy by 2030" in July, 2008 (  This would require a least 200,000 industrial scale wind turbines, destroying between between 1 million to 2 million acres for construction.  The Appalachian forested ridges comprise one of the targeted areas for expanded construction.  Construction of numerous wind projects on mountain ridges within the APpalachian region of Virginia will have cumulative negative impacts on several bat species, including threattened and endangered bat species.  This is in addition to the current problem of bat mortality due to "white-nose syndrome", which is killing thousands of bats annually.  Neither a definitive cause nor a cure for this has been established yet.

The DEQ, not the wind company owner or operator must be responsible for obtaining public comments on all proposed industrial scale wind projects and provide an avenue for submittal and review of expert testimony.  The only industrial scale wind turbine project (Highland New Wind Development, Highland County) that has been presented to the Virginia State Corporation COmmission (SCC) has been debated for approximately 7 years and the project is still flawed: 1) within the past year, it was determined that the boundary between Virginia and West Virginia had not been accurately established to determine the exact location of the wind project; 2) the site plan and the sediment and erosion control plan are still deficient, according to DCR inspection reports; 3) it was determined tat an appropriate evaluation of the impact to Camp Allegheny, an important historic resource, was not conducted; and 4) there are currently lawsuits against the company because natural resources are not being protected.  It is clear that a meaningful evaluation of a wind company permit application cannot possibly be completed within the 90 day limit proposed in the "Permit by Rule". 

An ecologic unit or watershed-based approach is necessary to adequately determine the impact on natural heritage species and natural resources as a result of destruction caused by construction of industrial scale wind turbine projects.  As stated on the DCR's website concerning "The Natural Communities of Virginia Classification of Ecological Community Groups" (, the DCR is using ecological communities as a tool to manage natural resources because the DCR is responsible by statutory authority for documenting, protecting, and managing "the habitats of rare, threatened, or endangered plant and animal species, rare or state-significan communities, and other natural features" (section 10.1:209-217, Code of Virginia)."  By using this ecological community approach, it is obvious that "field surveys" limited to the zone of disturbance are inadequate to evaluate the impact of the wind project on the local ecology.  The impact area extends far beyond the disturbance zone.   

Furthermore, the DCR outlines the watershed-based approach to protect fish and widlife habitat: "Local Watershed Management Planning in Virginia" (  The DCR provides the definition of a watershed as "...all the land that drains into a given body of water.  This body of water can be a creek, pond, river or ocean.  Generally speaking, the larger the body of water, the larger its watershed.  The Chesapeake Bay watershed, for example, covers 64,000 square miles and drains from six states including 60 percent of Virginia."  (  Furthermore, the DCR's "Engineer's Toolkit - Virginia Stormwater Management Program (VSMP) Permit Regulations Effective January 29, 2005" specifies that in "4VAC50-60-50. General. Determination of flooding and channel erosion impacts to receiving streams due to land-disturbing activities shall be measured at each point of discharge from the land disturbance and such determination shall include any runoff from the balance of the watershed which also contributes to that oint of discharge."

However, the Virginia Stormwater Management Program (VSMP) Permit granted by DCR to Highland New WInd Development did not include any evaluation of the sub-watersheds into which stormwater from the project construction site will be discharged through culverts.  The DCR inspector's reports consistently reference the lack of any drainage delineations.  In a meeting with the DCR inspector, he confirmed that only the drainage areas to the culverts are being considered and that there is no consideration of the sub-watershed of the receiving stream.

The "Permit by Rule" must specify the DEP's responsibility to assure and enforce the requirements of the Code of Virginia that pertain to Virginia Erosion and Sediment COntrol (ESC) Regulations.  The DCR has allowed ongoing construction at the Highland New WInd Development wind project, even though the DCR  inspector has reported non-compliance with requirements of the ESC Regulations.  DCR has not upheld the following Virginia laws: 

"4VAC50-60-60. Water quality.

     B. Performance-based criteria. For land-disturbing activities, the calculated post-development nonpoint source pollutant runoff load shall be compared to the calculated pre-development load based upon the average land cover condition or the existing site condition.  A BMP shall be located, designed, and maintained to achieve the target pollutant removal efficiencies speciied in Table 1 to effectively reduce the pollutant load to the required level based upon the following four applicable land development situations for which the performance criteria apply..." 

"4VAC50-60-70. Stream channel erosion.

     A. Properties and receiving waterways downstream of any land-disturbing activity shall be protected from erosion and damage due to changes in runoff rate of flow and hydrologic characteristics, including but not limited to, changes in volume,velocity, frequency, duration, and peak flow rate of stormwater runoff in accordance with minimum design standards set out in this section. 

     B. The permit-issuing authority shall require compliance with subdivision 19 of 4VAC50-30-40 of the Erosion and Sediment Control Regulations, promulgated pursuant to Article 4 (10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

     C. The permit-issuing authority may determine that some watersheds of receiving stream systems require enhanced criteria in order to address the increased frequency of bankfull flow conditions (top of bank) brought on by land-disturbing activities.  Therefore, in lieu of the reduction of the two-year post-developed peak rate of runoff as required in subsection B of this section, the land development project being considered shall provide 24-hour extended detention of the runoff generated by the one-year, 24-hour duration storm.

     D. In addition to subsections B and C of this section permit-issuing authorities, by local ordinance may, or the board by state regulation may, adopt more stringent channel analysis criteria or design standards to ensure that the natural level of channel erosion, to the maximum extent practicable, will not increase due to the land-disturbing activities.  These criteria may include, but are not limited to, the following:

            1. Criteria and procedures for channel analysis and classification.

             2. Procedures for channel data collection.

             3. Criteria and procedures for the determination of the magnitude and frequency of natural sediment transport loads.

              4. Criteria for the selection of the proposed natural or man-made linings." 

The DCR ( further explains that "The changes to the land surface associated with development activities will bring about significant changes to a channel's natural equilibrium.  As channels are consistently impacted with increased volume, velocity, and peak rates of flow, they will change by increasing their cross-sectional flow area to accommodate the higher flows.  This is done either through widening of the channel banks, downcutting of the channel bed, or frequently both.  Research conducted in many geographic areas has concluded that channel degratation occurs at relatively low levels of imperviousness (10-20%).  (Watershed Protection Techniques, Vol. 1, No. 3)."  Section 4VAC50-30-40.19.a of Minimum Standard 19 (MS-19) of the Erosion and Sediment Control Regulations (4VAC50-30-40.19.a) states: "Concentrated stormwater runoff leaving a development site shall be discharged directly into an adequate natural or man-made receiving channel, pipe or storm sewer system.  For those sites where runoff is discharged into a pipe or pipe system, downstream stability analyses at the outfall of the pipe or pipe system shall be performed."

DEQ will no doubt receive numerous lawsuits if the "Permit by Rule" does not cause it to enforce existing environmental laws established by the Code of Virginia.  

The "Permit by Rule" has no requirement to use Best Management Practices, which should pertain to numerous ecological untis.

The DEQ must be allowed the NO BUILD alternative.

Noise from industrial scale wind turbines is known to cause human health problems.  For human health, there must be setback limits from existing homes.  there should be sound wall requirements.  There is no mention of noise in the "Permit by Rule".

Wind data should be public information.  Wind companies typically require that the wind data from their wind project sites should be proprietary.  Data currently available to the public indicates that the wind velocities are too variable and volatile to provide meaningful amounts of dispatchable electricity.  If this is not correct, the wind companies should be proud to provide their wind data to prove that it can be meaningful.  However, wind data has only been available "under seal" so that studies could only provide generalities about the data.  So far, the generalities indicate that wind in the Appalachian mountains is not steady enough or strong enough to provide meaningful electricity.

The Economic Analysis document supporting the "Permit by Rule" is deficient.  The Economic Analysis document indicates that real estate value will increase for wind projects, but does not address the fact that most real estate is leased for this and there is no evaluation of reduction of value because people don't want property near wind projects.






CommentID: 14361

8/20/10  3:09 pm
Commenter: Rick Thomas, Timmons Group

Need for Memoranda of Understanding Between Participating Review Agencies

Dear Ms. Wampler,


I respectfully submit the following comments regarding the above referenced proposed regulation.  These comments are intended to assist in providing clarification within the technical documentation and permit processing requirements relative to sections 9VAC 15-40-40 through 15-40-60 regarding analysis of the beneficial and adverse impacts on natural resources, determination of likely significant adverse impacts and mitigation plan. 


I recognize that there has been a considerable and laudable effort throughout the development of this regulation to balance the multiple interests associated with affected parties of this regulation and I commend the Department of Environmental Quality (DEQ) for providing the Commonwealth of Virginia with a well balanced regulation that provides both significant protection of natural and cultural resources of the Commonwealth, and a degree of certainty for  planning and constructing needed renewable energy facilities. 


In evaluation of the sections of the regulation 9VAC 15-40-40 through 15-40-60, I believe that both wind energy developers as well as state regulatory personnel within DEQ and participating agencies including the Virginia Department of Game and Inland Fisheries, the Virginia Department of Conservation and Recreation and the Virginia Department of Historic Resources would benefit through the development of two Memoranda of Understanding further clarifying the documentation requirements, review procedures and timelines, and technical criteria associated with adverse effect determinations and mitigation requirements (one Memoranda for natural resource issues and one memoranda for cultural resource issues).  With the stated goal of attempting to provide regulatory certainty and timeliness of permit processing requirements, I believe that there is still a certain degree of uncertainty of content requirements and process responsibilities with how each participating agency will interact with one another and applicants to work through adverse impact determinations and mitigation requirements, particularly in cases involving historic resource view-shed impact determinations and resolution.  Regulatory guidance focused on both natural and cultural resource impact determinations, review agency responsibilities and timelines and application documentation requirements will assist in providing the clarity and regulatory certainty needed to foster renewable energy development in the Commonwealth.      






Rick Thomas

CommentID: 14362

8/20/10  5:20 pm
Commenter: Allegheny Front Alliance

No Support for Proposed Rule Making to Permit 'small renewable energy project greater than 5 MW




AFA believes there are serious environmental issues the industrial wind corporations do not address. Regulatory action is essential to protect the health, safety, and welfare of citizens. Effective regulation is critical to protect and conserve unique biological, ecological, geological, geographical, cultural and historical resources.


As proposed, the entire spirit the Virginia Legislation that mandates that DEQ develop one or more permits by rule for small renewable energy project is misleading and defrauds the public. It does not represent the best interests of DEQ and Virginia citizens. At best is a minimal plan. The plan fails to address long range, direct and indirect impacts on environmental quality cultural resources.

The term ‘small renewable energy project’ is inappropriate, misleading and inadequately describes reality. The term ‘industrial wind turbine generation project’ represents a more truthful statement. The common public perception of a ‘small renewable project’ represents a ‘home grown’ project that serves an individual homeowner, a farm or small business. The erection of these projects is usually in rural areas or atop a structure. Their height is usually less than 100 feet.


The analysis of beneficial and adverse impacts (9VAC15-40040, p. 2567) requires the desktop survey and maps on wildlife known to occur within the area are inadequate. An important component of wildlife management is habitat analysis because habitat provides food, cover, and other factors required for population survival. Many species are elusive, so desktop map analysis and even observation of habitat use is limited. Using only visual location will produce bias use patterns. This is particular troublesome for i) wildlife species known to occur within two miles of the boundary site, ii) bat hibernacula know to occur on the site or within five miles, iii) maternity and bachelor bat colonies know to occur on the site or within 12 miles of the boarder of the site. Bat acoustic surveys, mist-netting or harp-trapping surveys should be conducted under the guidelines established by the US Fish and Wildlife Service. Suggested Reference Resource: Guidelines for Conducting bird and bat Studies at Commercial Wind Energy Projects


Guidelines for Conducting bird and bat Studies at Commercial Wind Energy Projects

Study analysis should extend beyond descriptive measures. Statistical methods should represent data type collected, how observations are weighed, data reliability, and assumptions required to test the hypothesis. Habitat analysis and reports should consider habitat use patterns, determination of use and availability, utilize random sampling recommendations, demonstrate populations density estimates, survival rates include employing interval and continuous data. All studies should contain spatial and time components.

That post construction assessments should move beyond counts of dead bats and birds in order to identify effective operational parameters that avoid and minimize bird and bat mortality. Studies should investigate if birds and bats are attracted to turbines and bird and bat activity and mortality vary with wind speed, direction, persistent weather events and other facts.”

“Monitoring plans should include a robust adoptive adaptive management component that describes the studies to be conducted, anticipated outcomes (hypothesis to be tested) and subsequent series of resources addressing those outcomes. Monitoring should be conducted to determine if the selected responses actually result in a reduction of fatalities.”

“Mortality searches should use dogs to improve detection rates in medium and low visibility habitats. (Arnett 2006)


AFA does not recommend or support the proposed ‘small renewable energy Projects (Wind) Permit by Rule. This recommendation “is essential to protect the health, safety and the welfare of Virginia citizens” because the proposed rule fails to create necessary protections to Virginia natural resources affected by the construction of industrial wind turbine projects.

  • The proposed rules offer a misleading description of small wind project.
  • The rules inadequately address issues related to historical, scenic, cultural and wildlife resources.
  • The rule does not require consultation with federal agencies, including the US Fish and Wildlife Service and the National Park Service.
  • The rule ignores local governments and community organizations.
  • The rule contains no protective provisions for human health and safety.
  • The rule omits the process of deconstruction and removal should the project become non-operational.

Under seperate email we have submitted our entire comments and recommendations. Thank you.  Frank O'Hara





CommentID: 14363

8/20/10  8:32 pm
Commenter: Richard M. Laska, Laska's Grove

Cumulative impacts ignored by proposed permit by rule

As unjustified as it would be to 'permit by rule' an individual project which could intrude on hundreds of square miles of viewshed, the lack of a reasonable standard for approval of additional nearby permits is irresponsible in the extreme.  The impact upon wind energy resources alone should require that abuttors or nearby landowners be allowed to protect their private property rights, their wind rights, against theft by first comer.  Just as landowners whose land straddles a river do not have the inherent right to dam or divert that river, owners of upwind land have no right to steal wind energy from their neighbors.

In addition, wind resources in Virginia are clearly delineated by the Federal Department of Energy.  If one permit is applied for it is irrational not to expect others to be proposed nearby.  Prior to the approval of any single permit in a particular airshed, an analysis of potential cumulative impacts upon such concerns as natural, economic, historic, aesthetic, environmental and endangered species resources in the vicinity of that airshed is essential.  Without such prior analysis, all of those concerns are rendered without value by the first of what may be multiple permits.  If this permit-by-rule were to take effect without adequate consideration of cumulative impacts, an entire rainbow of concerns, interests and laws would suffer the death of a thousand cuts.  This is not permit-by-rule, it is grand-theft-by-rule.

Please advise the citizens where, in the proposed rule, is the consideration of cumulative impacts delineated?  What intra-agency analyses are required to ensure that potentially applicable State and Federal laws and regulations are not violated?  This appears to be a proposed rule which was rushed into review by an ideologically blinded administration to serve the interests of a few influential power brokers.  The public interest is nowhere to be found in this draft regulation.

In closing, the presumption that industrial wind facilities are of benefit to electricity consumers, taxpayers, the environment or the citizens of Virginia is assumed without any factual evidence whatsoever.  When a rule is propounded, at a minimum it must meet the standard of serving the public interest.  There is no data whatsoever on record to justify issuance of this rule based upon the public interest.  Precisely what public interest would be served by this rule?

There is no legally or scientifically credible rationale for issuance of this importune rule.  Without such rationale, the justification for issuing such a rule is as transparent as the Emperor's New Clothes.  And equally embarassing.

CommentID: 14364

8/20/10  10:02 pm
Commenter: JD



JD - Roanoke
The regulation will raise the cost of energy in Virginia. The subsidizing of the energy also increases each citizens’ tax burden (we each pay a part of the turbines). Neither issue is mentioned in the economic impact statements. Because wind power is not cost-efficient, it is subsidized - Europe is backing out of the subsidy game now because they simply can’t afford it any longer.  VA citizens can’t afford it either. Learn from these other formerly wind crazed countries.
The scientific basis for claiming that carbon emissions will be reduced by stripping miles of mountaintops must be quantified – as it appears to be some basis of the regulation. 
Less than 1 percent of U.S. electricity generation comes from oil, whether foreign or domestic. Wind will not replace carbon-based fuels because the wind does not blow when we need it and when it does blow we don’t need it. It is terribly inefficient in the mountains. The gross inefficiency must be considered against the amount of environmental impact involved for each PBR – over five miles of ridgeline for each project! 
The wind investors will profit nicely from the selling off of the Blue Ridge and other valuable mountaintop resources, yet the folks living in VA mountains will face the prospect of loosing 25% of their property values. The continual economic survival of rural communities depends on the concept of rural life and unspoiled countryside, away from the commercial and industrial development that is characteristic of our towns and cities. The devaluation of assets such as property by rural industrialization will inevitably reduce new economic injection into these areas. Allowing the proliferation of these industrial developments will likely trigger a slide back into rural economic deprivation as the lifetime savings of people living in these communities are eroded by the devaluation of their properties.
These are economic impacts. The impression that the regulation leaves is that there are no negative economic impacts. Its just not true.
The negative impacts on views, which are fundamental to Virginia tourism (its second largest economic sector) will be FOREEVER changed – making this permit unlike any other permit that the DEQ issues – it will permit the loss of the Blue Ridge, the Shenandoah, the Alleghany Mountains. What do we say when its gone? Crowned with these everlasting monuments to human gullibility. DEQ should require cleaner emissions from coal plants, and not struggle against itself to protect VAs resources by plundering the mountains. A vital part of Virginia will be lost forever for no meaningful gains. The desire of the wind industry (which were on the RAP) was to minimize the review of the impact of any site, but the DEQ must expose each project to a more reasonable assessment, not the narrow overview as proposed by the PBR. The distance of the scenic resource impacts must be expanded. Also, the loss of property values associated with view should also be determined as a component of each PBR application. This assessment must be available for public comment. 
Destroying miles of the Blue Ridge and other of our treasured ridges, lose ‘our’ Blue Ridge Parkway overlooks, have our electric bills go up, and pay increased taxes to subsidize it all is like throwing away the baby with the bathwater. One turbine complex in Roanoke Co. is proposed on the very mountain for which the adjacent Blue Ridge Parkway overlook is named and is the prominent feature. This is a ‘shortsighted’ regulation, which should not allow for these losses to such resources.   The regulation should actually require applicants to determine impacts to the BRPW and all other scenic assets at a range that reflects the view – which happens to be well over the 5 miles in the mountains, which all the regulation sees.   The DEQ will permit by rule the degradation of the Blue Ridge Mountain ridges, and then the Shenandoah, and all over VA mountains without any meaningful protections. To ignore the overall economic impact of these costs is irresponsible. The governor’s office should conduct an economic evaluation of the PBR claims.
Onsite evaluation of wildlife and plant communities should also be required. Desktop surveys have disclaimers – read them. The allowance to review impacts two miles away is not reasonable. Some of VA’s rarest treasures live in these remote mountains slated for the dynamite and bulldozers, and two miles away from an impacted site could completely miss relevant impacts to already threatened species. The “or” should read “and”.   
Community Health Impacts
Community concerns about health, safety, impacts on all wildlife and other natural resources (not just a select few), deserve to be considered in this process. These projects impact local communities. Many rural residents and communities will be exposed to a doubling of the background noise at nights. Some people are very sensitive to the low frequency noise, emitted from turbines - and suffer from sleep depravation and symptoms akin to sea-sickness as a result of living too close. Some assessment of the noise impacts to the folks living near these turbines should be required upfront.
Other comments:
Note that the recent PBR for composting is must more protective of the public health and safety – it can be done. The ‘Tiered’ approach was also wise. Has DEQ considered a tiered approach to differentiate between turbine complexes of 10 & 100 MW – because it involves the difference of several miles of impact? 
The ‘stringing’ of PBR sites – how is that dealt with? I can see that many PBR strung together would not receive any cumulative impact reviews. Are future wind development allowed within a contiguous line if they are submitted separately?
The PBR applicant should be required to assess all local community impacts to television, radar systems, air travel, etc, prior to considering coverage under PBR.
This was not a good piece of legislation that was handed to DEQ, but that doesn’t mean DEQ should go ‘light’ on its oversight on the siting, construction, and operation of these industrial complexes.  
CommentID: 14366

8/20/10  10:27 pm
Commenter: Virginia

PBR needs more work


DEQ agency mission statement from web.
DEQ: “Protects the environment of Virginia in order to promote the health and well-being of the citizens of the Commonwealth.
General Comments:
  1. The un-researched statements contained in the economic impact analysis of this regulation are grossly deficient in evaluating the impact to Virginia citizens and businesses. The economic impact analysis should be provided by the governor's office, as the higher costs of electricity resulting from wind development are of significant statewide interest. 
  2. The proposed regulation does not provide a means of achieving the DEQ stated mission of promoting public health.  Rather, the PBR places public health at risk, failing to even consider the issue of the negative ‘nearby’ resident health impacts from improperly placed industrial wind turbines.  These health impacts are well documented throughout the world, and are a primary public health concern associated with wind turbines. 
  3. The proposed regulation does not provide a means of achieving the DEQ stated mission of protecting the environment.  Rather, the PBR appears to effectively remove meaningful environmental reviews to critical environmental resources.  For projects that will result in ~ 7 miles per permit, these impacts need more comprehensive  assessments. 
  4. The word ‘significant’ is never defined and is the most ‘significant’ word used in the entire PBR.  Define significant in each context for which it is used.
The idea of wind energy sounds good, and I believed that it was a good idea at first, but the scientifically based realities of ‘wind energy’ indicate that inland industrial wind development is not an environmentally responsible means of developing wind power.  Poorly conceived legislation promoting inland wind development does not relieve the agency from its duty to protect the health, safety, and welfare of Virginia citizens and the Commonwealth's environment.
Please consider the following comments to specific language of the regulation, noted in italics:
Purpose:…This regulatory action is essential to protect the health, safety, and welfare of Virginia citizens because it will establish necessary requirements (there are no provisions of the permit to provide for the protection of public health, safety, or welfare – in fact no mention at all of these serious public impacts from industrial wind turbines. Therefore, this is a false statement and must be deleted, or in fact, provide provisions in the regulation that do protect public health, safety, and welfare. 
Mountaintop turbines can profoundly affect public safety communications systems, television reception, radar systems, etc., so a design review focused on the wind farm’s effects on these critical public safety components must be required as part of the PBR application.) 
Issues: The primary advantages of the proposed regulation to the public……proposal creates a clear and, DEQ believes, an efficient path for development of wind energy in Virginia. Avoiding additional electrical generation from fossil is a benefit for the environment because renewable energy projects do not emit greenhouse gases or other air pollutants. (Is this verifiable? There are numerous resources available which contradict this statement.  Coal-fired plants must be kept running to ‘back-up’ wind, and coal is marketed and sold globally, its mining and burning will not be effected at all by wind development.
Developing and expanding new, environmentally friendly industry in Virginia is also a boost for our economy and a significant step in creating energy independence from foreign oil interests.  There is no evidence of such a general statement. Oil is not the issue, because it is not the resource used for generating electricity.  As for coal, there will ultimately be no reduction in green house gas emissions.  John Droz has an excellent slideshare presentation that explains the science based truth about industrial wind development
The American Thinker recently published an article which is an appropriate response to this misleading statement of the regulation:  Please consider
Estimated Economic Impact.
Wind power is generally considered less damaging to the environment than most other sources of energy. (“Generally considered” is no basis for allowing the environmental damage of the massive land base required for one industrial 100MW wind complex allowed by the PBR (which is roughly 7 miles of mountain ridgetops per PBR).  Sacrificing the last of the Commonwealth’s wild places, our mountaintops, will not result in the reduction of coal mining, because there will be no reduction in coal mining activities, making wind an additional sacrifice of already limited resources of the Commonwealth.  The PBR only evaluates a narrow select set of environmental concerns ,and therefre, the scope of the impact isn't even being evaluated) Thus, to the degree that the likely increase in generation of wind energy replaces more polluting forms of energy, there will likely be some benefit to the environment.  (Using a “likelihood” argument is also irresponsible.  Without an adequate site specific study on all of the ‘environment’ impacts, can this statement be considered sincere?  As noted in above comment, there is no replacement of more polluting forms – if replacement is going to happen, the details of the replacement issue must be codified in the PBR.
The economic impact analysis must include the fact that industrial wind projects increase the cost of electricity to communities – and the tax burden also necessarily increases because these projects are heavily subsidized (tax payers pay part of cost).  Electricity prices increase – taxes increase – this needs to be stated as part of an economic impact assessment. The increased costs associated with wind power will contribute to a slowing of economic growth and have a marked negative economic impact on businesses and also local citizens, already strapped to try to pay higher electric bills.
Effects on the Use and Value of Private Property.
The statutes and proposed regulation will increase the likelihood that small wind-energy projects will go forward. Consequently, the proposed regulation may have a small positive impact on the value of land appropriate for such projects and entities that may be considering generating wind energy.  The “use and value” of private property of a community impacted by these projects will experience negative “Effects”.  The ‘positive’ impact noted in the justification will be outweighed by the negative impact to communities, especially adjacent properties.  The adjoining property values suffer the most significant decline due to the health problems related to the noise “effects”, which can reach over a mile in the mountains. The “land use” of adjacent property values is also diminished.
Again, the DEQ mission statement says it “Protects the environment of VA in order to promote the health & well being of the citizens…”.  No provisions are contained in the proposed PBR to facilitate that goal.  Current wind energy developments are causing health impacts to local ‘nearby’ residents across the globe.  The health (noise) related issues are the ‘elephant in the room’ to rural communities, which the PBR does not address at all. There are many peer-reviewed studies showing that infra and low-frequency sound can cause adverse health effects, especially when dynamically modulated.  “There is no medical doubt that audible noise such as emitted by modern upwind industrial wind turbines sited close to human residences causes significant adverse health effects…This is settled medical science.”
Failure to address human impacts is at odds with the agency mission and the stated purpose of regulation.  Therefore the regulation is effectively allowing for the exact opposite of the stated purpose.
The health issues are related to the peculiar noise emissions from large industrial wind turbines.  At over 100 dB, the noise emitted by industrial wind turbines is the equivalent of a jet flying overhead at 1000 feet.  DEQ, must consider the potential negative effects on human health from these industrial wind turbines.  An excellent documentary detailing the issues can be viewed here:
The PBR will allow wind turbines into areas that would obviously have a negative impact on local property values, especially in ‘quiet’ rural settings, as miles of mountain tops are stripped and industrial machines are placed in the last of the quiet and scenic places in Virginia.  Listen to this realtor in PA:
The local community “health & well being” impacts from this financial loss of equity in private property are not mentioned in the economic statement.  Testimony on such impacts can be found easily:
A review of human health impacts should be requested from the VDH.  Attached is a recent report on the health issues from the Minnesota Dept of Health.  The report affirms the noise issue as a health concern.
The PBR application must include extensive noise studies for any projects where there are humans within 2 miles of any turbine to provide for the protection of the nearby citizen’s “health & well being”.  These noise studies must be available for third party review, prior to deeming application complete. 
As noted in the MN Dept of Health document, low frequency noise levels must be considered, as well as the specific impacts of local topography, and the specific atmospheric conditions, such as typical in mountainous terrains.
Watch this video as the wind industry blows the top off of a ridge to put one of these turbines up on a ridge, and neighbors testifying about the impacts
The flat spots of several acres that are required to erect these huge machines requires blasting on VAs sharp ridge tops, heaping enourmous tons of earth into steep mountain hollows.  There are no means of mitigating the water quality impacts to the downstream water resources.  It is too steep to even place a silt barrier below the 'spoil piles'.  At a proposed site in Roanoke County, a DEQ Tier III critical water resourse, Bottom Creek, derives its flow from the headwater tributaries formed by the same ridges that DEQ will allow to be blasted with this PBR.  No review of this impact appears to be required.  DEQ should request an impact analysis for downstream water resources, including adjactent property water resources (e.g. springs).   
What if impacted community is not in agreement with applicant’s response to their comments at the public meeting? 
What recourse does a negatively impacted community or individual have, if concerns are not adequately addressed by permit applicant? 
Is there any recourse after the PBR is granted to the applicant?
Much research has changed my opinions regarding ‘industrial wind’.  Industrial wind in the mountains is not responsible wind development and should not be encouraged with a PBR which does not meaningfully evaluate environmental impacts. 
 9VAC15-40-40. Analysis of the beneficial and adverse impacts on natural resources.
A. Analyses of wildlife.: (i) wildlife species and habitats known to occur on the site or within two (2) miles of the boundary of the site; (ii) bat hibernacula known to occur on the site or within five (5) miles of the boundary of the site; and, (iii) maternity and bachelor bat colonies known to occur on the site or within twelve (12) miles of the boundary of the site.
Remove “or” – replace with “and”.  This is critical to evaluating a particular site.  A site two miles away does NOT in any way allow for specific site identification of particular species to be considered.  Threatened and Endangered species are not widespread, and evaluating a site over two miles away (on large tracts of land, the ‘boundaries’ may be a good distance from the actual impact site.  Allowing two additional miles would allow a study on a completely different ecosystem, rather than the actual, perhaps extremely rare remote sites, containing rare and threatened species.  The applicant should not be allowed to evaluate an entirely different plant and animal community.  The agency should not allow for the developer to pick and choose the data to be submitted before removing miles upon miles of mountaintops along the Blue Ridge, and other mountains, for investment profiteers.  
C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 …….The analyses shall include:1. Natural heritage resources         2. Scenic resources.  What about the mountaintops of Virginia?
Here is a news documentary on the health effects of living surrounded by wind turbines
 Some additional weblinks for considering actual impacts from industrial wind turbines:
CommentID: 14367