By Caity Coyne for West Virginia Watch
After voting down two amendments Monday that would have added provisions frequently demanded by residents who live in communities where data centers are being proposed, the state House of Delegates on Tuesday approved new rules on how the West Virginia Department of Commerce will certify microgrids and high impact data centers in the state.
The proposed rules relate to last year’s passage of House Bill 2014, which created the certified microgrid program and set policies for how certain data centers that come to the state may operate. The rulemaking process started in the state Department of Economic Development in November.
In December, more than 930 residents submitted public comments on the proposed rules. They cited apprehension over the developments potentially harming the environment, infrastructure and the economy in communities they are built as well as issues with the lack of local control and transparency within the proposed rules.
Last month, lawmakers on the Joint Legislative Rule-Making Committee approved changes to the initially proposed rules that added in language to clarify that any high impact data center or microgrid must follow state and federal environmental laws, redefine “nearly contiguous property” for parcels within the districts and give explicit authority to the Secretary of Commerce to request any information from applicants and work with other agencies before certifying, among other things.
The most material change to the rules made in that process was the inclusion of how developers and the Department of Commerce will handle a potential “inordinate burden” posed by the potential high impact data center or microgrid.
Per the rules, which have now been passed by the House, developers who apply for certification must flag if their proposed project could place a significant and unreasonable burden on nearby property owners due to its location, environmental risks it may bring, the proximity to schools, homes or historic sites and more. Developers will have to share how they plan to offset those potential harms and the Department of Commerce will have the right to independently verify or challenge claims made by the developers.
On Tuesday, the proposed rules — presented in House Bill 4983 — passed the House 78-16 with five members absent and not voting. All nine of the body’s Democrats voted against the proposed rules. They were joined by seven Republican House members.
Del. Laura Kimble, R-Harrison, was one of the Republicans to vote against the proposed rules. Kimble, who was also one of three Republicans to vote against HB 2014 last legislative session, said she was disappointed to not see changes made through rules to address issues she’s had for the last year.
She said she voted against HB 2014 initially because she disagreed with taking control away from localities — the law banned local governments from enforcing rules or ordinances against certified developments, like limits on noise, pollution and more — and not having more information on how developments could impact water quality or availability.
Last year, she said, she was hoping the Senate would move to take aim at her concerns. It did not.
When the bill came back for final passage in the House, she said she was “assured” that her uneasiness would be addressed through the rule-making process. Again, she said, they were not.
“I am not against data centers. I’ll make that perfectly clear right now. What I heard (on Monday) was an allusion to ‘Well, this is just a rules bundle.’ But last year, the rules process said we would address water local control. I don’t see that in this rules bundle,” Kimble said. “I believe in local control. I think that instead of local decisions being made about this, it will be done by the decentralized planning of the Department of Commerce, and I don’t approve of that.”
Kimble’s concerns about the rules for data centers echo apprehensions voiced for months now by residents in communities across the state where developments are being proposed.
In Mingo County, residents have questioned why a proposed development could potentially have access to new water sources while they often go days or even weeks without water. They fear that the amount of water needed for the proposed development could affect how much they have available.
In Tucker County, locals want to know why their local governments have been stripped of the power to regulate how these developments would operate in their communities. The surrounding region is reliant upon outdoor tourism and residents worry that the proposed development — a massive data center and natural gas power plant — could impact the local economy.
Residents in both communities, as well as those in Mason County, have voiced concerns that data centers and the power plants constructed to power them could harm surrounding environments and public health as a whole while they are left in the dark about the impacts.
Amendments to address community fears over water, local control and more voted down
On Monday, lawmakers voted down two amendments that would have added some of the provisions that Kimble — and hundreds of other residents in public comments during rulemaking and the House Committee Process — said she wanted to see in the code to dictate how microgrids and data centers are certified.
One amendment — filed by Del. Evan Hansen, D-Monongalia, and the eight other Democrats in the House — would have added language requiring developers seeking to construct data centers to share specific details on where they would draw water from for operations, how much water they envision using and what impact that water usage could have on local residents.
Hansen called his proposal a “transparency amendment.” He said it was reasonable to ask companies seeking to build large developments to explain how those complexes could potentially impact local water sources and the residents who rely on them.
“My amendment is not a black and white amendment that bans anything or that would stop development. What it is, is a transparency amendment that requires the disclosure up front of what the impacts are likely to be to our water,” Hansen said. “So the intent of it is not to stop data centers … The intent is to make sure that serious consideration is given up front to make sure that they’re not impacting other water users.”
Del. Mark Zatezelo, R-Hancock, said Hansen’s amendment was not appropriate for the rules the House was considering. Zatezelo, who serves as vice chair of the House Energy and Public Works Committee, said it was too broad and concerned changes with the actual code regarding permitting — not the proposed rules meant to direct the Chamber of Commerce on how to certify data center developments.
“We’re not talking about the kind of studies that you need to do, the work necessary to make a final determination,” Zatezelo said. “That’s not what the rules bundle is intended to do. This is more of a 20,000 foot level look at data centers. When you get into the permitting, you’re down at the ground level.”
Hansen’s amendment was voted down 23-70 with six members absent and not voting.
Dels. Henry Dillon, R-Wayne, and Chris Anders, R-Berkeley, introduced a competing amendment to Hansen’s on Monday that would have taken potential regulation even further for certified data centers.
The Dillon-Anders amendment would have limited how developments use groundwater, adding “guardrails” to ensure that private wells and other groundwater sources are not impacted by “thirsty data centers.” It also would have required there to be a “minimum 500-foot buffer zone” between where a data center development is constructed and any homes, schools or churches.
Among other things, the amendment would have added provisions requiring that the Department of Commerce inform county commissions and post in newspapers when a data center development is proposed in their counties. Current law keeps most filings confidential.
Residents would have had the power in the Dillon-Anders amendment to circulate a petition if they feel that the development could “significantly and negatively impact the standard of living in the community or the environment of the community for the foreseeable future.” If 10% of the population located within 10 miles of the proposed complex signed such a petition, county commissions would be required to hold a special election for precincts within a 15 mile radius to potentially reject the construction.
Dillon said he believed the amendment contained “reasonable provisions” that address fears and anxieties that have been made clear by residents living in places where data centers are proposed. He said allowing locals to petition their government if they disagree with a development is a “fundamental right” and said it was a mistake to not include such language in HB 2014 last year.
“Data centers are unique in the ways in which they potentially impact local communities, so there should be provisions which are unique to addressing the circumstances,” Dillon said.
Since HB 2014 passed last year, Anders said constituents have been “blowing up” his email and his phone, worried that their wells will run dry, that their air will be polluted and that their voices have been silenced due to how the law was written.
“My constituents are very, very concerned,” Anders said. “The right of self determination — as you all know — was one of the key principles of our Declaration of Independence. That the people can decide what happens in their lives, in their government, in their area and their communities. This amendment reinforces that to allow the local people to decide if this is something that they want to have happen.”
But a majority of the body did not agree with the Dillon-Anders amendment. Del. Bill Anderson, R-Wood, said that the petition and special election provision was an “unfunded mandate” and should not be considered.
Del. Jonathan Pinson, R-Mason, said the proposal created “arbitrary, targeted obstacles” for data center developers and warned that, if adopted, it would “prohibit the industry altogether” and “force” data centers out of the state.
“[The amendment] really just sends the message, ‘We don’t want a single data center in the state of West Virginia.’ … House Bill 2014 last year was passed by this Legislature and signed into law as an opportunity to create business, create jobs, create revenue for the state of West Virginia,” Pinson said. “I believe that we’re placing a burden here on this business that we have not placed on any other business, any other economic development opportunity in the state of West Virginia.”
The Dillon-Anders amendment failed 6-87, with six members absent and not voting.
On Tuesday, Kimble said she was disappointed in the House’s failure to adopt either Hansen or Dillon’s amendment and the conversations that occurred around them. While she understands that several of her colleagues worried about the “chilling effect” the amendments could have had on potential developments, she was more concerned about the impact on the people of West Virginia.
“Yesterday, a couple of the comments that I heard were about [how] this may have a chilling effect on the ability for the data centers to come here. Well, I think this will have a chilling effect for the people of West Virginia that want to stay here. They’ve planned and invested in their livelihoods. They’ve invested in their families and their properties,” Kimble said, fighting tears. “I also believe it’ll have a chilling effect on the people that live out of this state that want to come home to West Virginia.”
With the House’s passage on Tuesday, the proposed rules in HB 4983 will now advance to the Senate for consideration.
West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com.
