As local governments in line for high-impact data centers try to navigate the state law regarding local control, Berkeley County officials have gotten at least one answer they sought: They continue to be responsible for complying with a federal framework for stormwater control in the area.
Generally, legislation passed two years ago and signed by the governor strips local governments of their traditional land-use, zoning and regulatory control over certified High Impact Data Centers and microgrid districts, replacing local oversight with a uniform state-level framework.
West Virginia has formally designated several high-impact data center projects, but none have reached the point of going into service. So local governments are still doing their homework of how specific interactions might work in practice.
Berkeley County is in line for at least one of the designated projects, a major 600-megawatt digital infrastructure project developed by Washington, D.C.-based firm Penzance.
The Berkeley County Commission’s legal director, Anthony Delligatti, sent a formal letter on August 28, asking the state Department of Environmental Protection for a written position on several aspects of stormwater administration at certified High Impact Data Center sites.
The letter attempted to explain that the questions are not intended to get in the way of the data center campus.
“The Commission is not seeking to employ the stormwater ordinance as a substitute for zoning, or as a mechanism to delay, condition, or defeat this project or any other. That is not the Commission’s purpose and the Commission does not wish to be understood as advancing it,” Delligatti wrote.
But the commission was trying to understand whether local officials still have oversight surrounding stormwater runoff at the new data center site under state law.
The potential conflict is that federal environmental permits and court consent decrees legally require local officials to prevent water pollution across the area, while the state’s law, HB 2014, generally removes local permitting powers.
The county asked the Department of Environmental Protection to clarify whether the local stormwater management ordinance remains an enforceable part of the county’s active federal Municipal Separate Storm Sewer System permit, shortened to MS4, within the high impact data center footprint. If so, under what specific conditions?
Berkeley County had asked for similar guidance from the state Attorney General’s Office, which declined to respond, citing its involvement in a separate legal challenge to the state’s data center law.
This week, the Department of Environmental Protection provided a fairly succinct response to Berkeley County’s questions.
DEP confirmed that the Berkeley County Commission and the Berkeley County Public Service Stormwater District are legally bound to comply with all terms and conditions of their active MS4 permit.
In short, the local responsibility for stormwater oversight remains.
“Consequently, the permittee is legally bound to comply with all terms and conditions of its MS4 permit, including the mandate to develop and implement storm water ordinances across the entirety of the covered area,” wrote Scott Driver, chief of DEP’s Office of Legal Services.