State Proposes Rule For Fast-Tracking Data Center Projects

The West Virginia Department of Economic Development has proposed the rule to implement a data center and microgrid law enacted earlier this year. Public comment on the Certified Microgrid Development Program rule is being accepted until noon on December 10, 2025.

The full text of the proposed rule is available here. Comments can be emailed to Garner.Marks@WV.gov.

The Proposed Rules

The proposed rules define how the Secretary of Commerce will certify microgrids and high impact data centers to qualify for the Microgrid Development Program:

The Secretary of Commerce shall have 14 days to certify data center projects
The Secretary of Commerce shall have 2 months to certify microgrid projects
The applications for certification will be confidential (no public comment)

A key provision of HB 2014 removes all local oversight for data center and microgrid projects that are certified by the Secretary of Commerce for this program.

HB 2014 defines “microgrids” as facilities that bypass the local utility to produce electricity for on-site customers. “High impact data centers,” which is what HB 2014 aims to fast track, require 90 megawatts or more of electricity (a typical data center can require 100 megawatts or more, so pretty much any new facility will meet this definition).

Lack Of Local Control Sparks Concern

During the legislative debate earlier this year, Jefferson County Commissioner Cara Keys among other local officials raised concerns about how HB 2014 would remove all local control over data center projects. Keys’ initial review of the proposed rule led her to remark to The Observer that “there is currently nothing that would address serious omissions in HB 2014. Specifically, screening, setbacks, buffers, ground water usage, and other protections for neighboring properties are not mentioned once in HB 2014 or this rule draft. Without these, the currently proposed rules offer no safeguards for local communities or strained water resources. I would like to think a complete omission of rules around the actual footprint and direct impact of these datacenters is simply a mistake, and I will work closely with our local legislators to raise these concerns so we can hopefully get this corrected before these rules are finalized.”

The Rulemaking Process — With An Emergency Provision

After the comment period is closed on December 10, the Department of Economic Development may modify the proposed rule based on the comments received. According to the standard rulemaking process, the next steps are:

The rule is filed with the Legislative Rule Making Review Committee (LRMRC) along with copies of the comments and the agency’s response to them.
If the LRMRC recommends no changes to the rule, it is presented to the full legislature for approval during the regular session.
If the LRMRC requests changes to the rule, it goes back to the agency for changes, and that version is presented to the full legislature for approval during the regular session.

The proposed rules for the Certified Microgrid Development Program were filed with an “emergency notice” which means the rule will go into effect as currently published on December 22, 2025. The emergency implementation of a rule is valid for 15 months or until the legislature approves its version of the rule, whichever comes first.

State Legislators Have Concerns, Will Meet In January

Several of the state legislators who represent Jefferson County raised concerns about the legislation as it was debated earlier this year. According to a recent report by Country Roads News, Senate President Randy Smith has said he expects “there will be a lot of changes to (HB 2014) over the next couple years.”

In addition to emailing comments to Garner.Marks@WV.gov, the designated contact person for the Department of Economic Development, Jefferson County residents can contact state legislators directly with comments: