Committee approves rule to certify microgrid districts and high‑impact data centers after clarifying edits
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Summary
A legislative committee approved 1 45 CSR 20, establishing filing, review and reporting rules for certification of microgrid districts and high‑impact data centers; members rejected a proposal to publish redacted filings but adopted clarified language on parcel contiguity and kept environmental and permitting safeguards intact.
A West Virginia legislative committee on Feb. 2 approved a new rule, 1 45 CSR 20, that sets procedures for petitioning the Department of Commerce to certify microgrid districts and high‑impact data centers. Lawmakers adopted agency‑agreed modifications clarifying how parcels qualify as "nearly contiguous" and rejected an amendment that would have required the agency to publish redacted copies of confidential filings.
The committee’s hearing opened with counsel summarizing the rule’s scope: petitioners must file a letter of intent and meet eligibility criteria; the secretary may consult agencies such as the Department of Environmental Protection and others before deciding; and decisions are final but appealable under the Administrative Procedures Act. Counsel said the agency received public comments and revised the rule in response.
Nick Preservati, deputy secretary of commerce and director of the West Virginia Office of Energy, and Garner Marks, general counsel for the Department of Commerce, described the agency’s review. Marks said the agency received about 937 comments and organized them into themes — economic, environmental, infrastructure, public‑transparency and local‑control — and published responses on the Secretary of State’s website. Preservati said the inordinate‑burden language was added to protect property owners, drawing on takings jurisprudence, and that the secretary has authority to verify petitioners’ representations.
A central point of debate was the rule’s definition of "nearly contiguous property." The rule allows parcels that together do not exceed 2,250 acres and permits parcels to be separated by up to 4 miles at their closest points. The committee accepted clarified language proposed by the Senator from the 6 that defines "nearly contiguous property" as "2 or more parcels of property forming a group in which the closest point between any parcel and another parcel in the group is no greater than 4 miles." The agency agreed to incorporate that wording as part of the modifications.
The committee also considered an amendment from the Delegate from the 56 that would have required the agency to provide a publicly available, redacted copy of filings when the secretary determined information to be confidential. The delegate argued that without notice the public cannot appeal. Deputy Secretary Preservati and agency counsel opposed the amendment, saying the agency does not "own" companies’ confidential material and that unilateral disclosure could create competitive disadvantages and chill submissions; they noted other permitting processes (air, water and DEP permits) still provide public notice and appeal opportunities. After debate the confidentiality amendment failed on a voice vote.
Members approved the agency‑agreed modifications and then voted to approve 1 45 CSR 20 as modified. The approvals were taken by voice vote and declared adopted by the chair. The committee closed with a motion to adjourn.
The rule requires petitioners to submit letters of intent and attachments, provides a five‑page letter format with exhibits allowed, mandates annual reporting by certified districts and data centers to confirm ongoing compliance, and states expressly that nothing in the rule exempts certified facilities from applicable state and federal environmental regulations. The agency said it may seek additional information during review and that failure to meet reported milestones could lead to agency enforcement, including potential decertification.
What happens next: the committee approved the rule as modified; any affected parties will continue to have standard permitting paths and appeal rights under other statutes and regulations cited by the agency.
