State Confirms Berkeley County Must Keep Enforcing Stormwater Rules

The West Virginia Department of Environmental Protection confirmed this week that Berkeley County remains legally bound to enforce its stormwater regulations at certified high-impact data center sites. The state agency issued a written response to questions posed by county officials regarding their continuing responsibilities under federal environmental law.

The clarification arrives as local governments grapple with legislation passed two years ago. That law, signed by the governor, strips municipalities of traditional land-use and zoning powers over designated data centers. It replaces local oversight with a uniform state-level framework. While no designated project in West Virginia is currently in service, county officials are working to understand how these changes operate in practice.

Berkeley County is preparing for at least one designated project, a 600-megawatt digital infrastructure development led by Washington, D.C.-based firm Penzance. On August 28, Anthony Delligatti, the county’s legal director, sent a formal letter to the DEP. He sought a written position on how the state’s new laws interact with existing federal requirements for stormwater control.

Delligatti emphasized in the letter that the county was not using the stormwater ordinance to delay or condition the project. “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,” he wrote. The core question was whether local officials still hold oversight authority over runoff at the new site.

The potential conflict lies in federal permits and court consent decrees. These legal instruments require local officials to prevent water pollution across the area. State law HB 2014 generally removes local permitting powers for these specific projects. The county asked the DEP to clarify if the local stormwater management ordinance remains an enforceable part of the county’s active federal Municipal Separate Storm Sewer System permit within the data center footprint.

Berkeley County previously requested similar guidance from the state Attorney General’s Office. That office declined to respond, citing its involvement in a separate legal challenge to the data center law. The DEP’s recent response provided a direct answer to the pending questions.

Scott Driver, chief of the DEP’s Office of Legal Services, stated that the Berkeley County Commission and the Berkeley County Public Service Stormwater District are bound by all terms of their active permit. “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,” Driver wrote.