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Land Use Review Board urges clearer Act 250 authority in H.727 data-center bill to avoid duplicative reviews
Summary
Land Use Review Board members told the House Energy committee that many data-center provisions would be better housed in Act 250 (Title 10) to avoid duplicate jurisdiction with the PUC and ANR, and recommended clarifying water, energy, and burden-of-proof language in proposed H.727.
At a May 19 meeting of the House Energy & Digital Infrastructure committee, Land Use Review Board representatives told lawmakers that H.727’s data-center provisions raise potential duplication of review and enforcement unless the bill clearly assigns responsibilities.
"If the goal is that each qualifying data center is subject to an Act 250 permit ... if you wrap the concern the conditions that you require into that permit, that becomes enforceable through our enforcement chapter 201," said Jenny Ronis, general counsel for the Land Use Review Board, describing how Act 250 and existing enforcement statutes would operate as a backstop for permit conditions. The board recommended concentrating environmental and siting review in chapter 151 (Act 250) and moving or striking provisions that duplicate existing Title 30 or water-permitting authorities.
Board staff recommended renaming the "site suitability analysis" to "project design suitability analysis" to avoid confusion with the land-use review process and suggested striking proposed language that pre-screens compliance with commercial building energy standards because criterion 9(f) of Act 250 already requires applicants to demonstrate compliance. "Criterion 9f ... requires demonstration that there will be the reduction of greenhouse gas emissions from the use of energy," Ronis said, noting Act 250 already incorporates those energy considerations.
On water and cooling systems, the board cautioned that surface- and groundwater uses for cooling must be reviewed under Act 250’s water criteria; they opposed a provision that would create a rebuttable presumption of no undue water pollution based solely on a surface-water withdrawal permit, saying withdrawal and discharge are separate concerns. The board also recommended clarifying that the applicant bears the burden of proof for any new data-center-specific conditions added to the Act 250 statute.
Committee members asked whether the board could estimate permitting timelines for large data centers; Ronis declined to speculate, saying timing depends on the completeness of permit applications and other agencies’ approvals. Members acknowledged the topic’s complexity and the likelihood of returning to the bill in the next biennium to refine jurisdictional language.
The committee accepted the Land Use Review Board’s memo and suggestions for further work on H.727; no formal legislative action on the bill was recorded in the transcript during the meeting.
