A Permitting Base Checklist for Data Centers and Power Plants

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There is a lot of talk these days about “license to operate” for data centers, meaning management of the relationships with stakeholders and broader communities concerning both the benefits and adverse consequences of locating a facility in a particular locale. Here, we are speaking of “license to operate” more literally—namely, the legal and regulatory permitting and approval requirements for a privately owned data center whether by itself or co-located with a power generating plant.

Our Base Checklist includes generally and potentially applicable permitting requirements for development and operation, using California as an example. (Taking legal authority Frank Sinatra out of context, “If you can make it there, you can make it anywhere.”) The actual requirements for a given facility would depend, in part, on local law, including planning and zoning laws and plans, and the environment of the site. Just as examples, additional permitting and mitigation requirements might apply if sensitive receptors are located nearby (e.g., noise mitigation for residential dwellings), if sensitive and protected biological resources (e.g., jurisdictional waters and/or protected species) would be impacted, or if the present or former land uses require additional measures (e.g., hazardous materials remediation, mitigation for conversion of prime farmland, or protection of cultural resources). The scope of permit requirements would ultimately be determined by the applicable regulatory agencies and by the lead and responsible agencies under the applicable state environmental land use regime—in our reference case here, the California Environmental Quality Act (CEQA).

This Base Checklist is just that—a base. We hope (well, let’s say our clients hope) never to encounter a California private project that runs into all these permitting requirements. Naturally, entirely different concerns may apply to a project in another state, or to a project anywhere that is launched by or with a public agency or public body. We nonetheless hope that building or subtracting from this reference is of use to our future selves and to others.

At the federal level, President Trump issued an executive order (EO) on July 23, 2025, entitled “Accelerating Federal Permitting of Data Center Infrastructure” that directs federal agencies to support and expedite project development and permitting of data centers and supporting power infrastructure. “It will be a priority of my Administration to facilitate the rapid and efficient buildout of this infrastructure by easing Federal regulatory burdens,” President Trump declared. “In addition, my Administration will utilize federally owned land and resources for the expeditious and orderly development of data centers. This usage will be done in a manner consistent with the land’s intended purpose—to be used in service of the prosperity and security of the American people.”

As a result of the EO, we have reason to believe that the federal government will be expediting environmental reviews of major data centers and streamlining or accelerating issuances of applicable permits. The federal initiatives prompted by the EO should bring some enhanced predictability around permitting facilities that support especially large data centers (defined as a facility that requires greater than 100 megawatts (MW) of new load dedicated to AI inference, training, simulation or synthetic data generation).

More recently, separate actions by FERC and by federal and state officials in the PJM electricity transmission market have spurred the advancement of proposals to co-locate data centers and power generation facilities as a means to reducing impacts of the extraordinary energy demands for computation and cooling of the centers. Whether spurred by governments or by economic efficiencies or both, permitting must take into account the impacts of data centers and power plants as integrated projects, an increase in both integration and sheer scale which may resolve some public policy issues and introduce others.

The effect of these initiatives on the permit and approval processes is unclear. Political policies could smooth things at any of the jurisdictional levels, or it might lead to greater scrutiny and potential opposition, especially on the state, local and Tribal fronts.

For more information on permitting and approvals of these or other facilities, please reach out to the authors.

PERMITTING BASE CHECKLIST

I.   PRE-CONSTRUCTION AND CONSTRUCTION

Federal Permits/Approvals/Regulations

Air Quality

    • Clean Air Act (CAA) implemented by local air districts (see below), including new source review and Title V operating permits.

Biological/Water Resources

    • United States Fish and Wildlife Service (USFWS) “take” authorization, if required under the Endangered Species Act (per ESA Section 7) for protected plant and animal species, or their critical habitat; USFWS biological opinion, if required
    • USFWS authorization under the Bald and Golden Eagle Protection Act or Migratory Bird Treaty Act, if applicable
    • United States Army Corps of Engineers permit under the Clean Water Act for discharge into federal jurisdictional waters, including wetlands, if applicable (see also Regional Water Quality Control Board (RWQCB) certification requirements)
    • Clean Water Act permits may be needed from US EPA to the extent the project diverts water from streams or aquifers for cooling, discharging wastewater and impacting wetlands.

Hazards and Hazardous Materials

    • Federal Aviation Administration (FAA) notification or approval required for certain construction near an airport/runway or within navigable airspace
    • Waste Management Permits for routine transport, use, or disposal of hazardous materials (e.g., diesel fuel)

National Environmental Policy Act (NEPA) Review

    • Projects on federal lands or involving federal funding require agencies to assess environmental impacts (but per EO above, agencies are directed to expedite these reviews).

Others

    • Federal Communications Commission (FCC) (telecommunication)
    • FAA and local airport regulations (potential interaction with air transportation, as noted above)
    • National Oceanic and Atmospheric Administration (NOAA) (satellite communication)

State Permits/Approvals/Regulations

Air Quality

    • Air Resources Board (ARB) Airborne Toxic Control Measure limits might apply (e.g., for emergency standby diesel-fueled engines)
    • ARB Distributed Generation Certification Program (electrical generation exempt from local air district permit requirements), if applicable
    • Additional requirements if ground disturbance occurs in an area of naturally occurring asbestos

Biological Resources

    • California Department of Fish and Wildlife “take” authorization under the California Endangered Species Act, if applicable

Energy

    • California Energy Commission (CEC) certification for power plants exceeding 50 MW capacity, or
    • CEC Small Power Plant Exemption, if applicable (local permitting would apply)

Hazards and Hazardous Materials

    • Hazardous Materials Business Plan, if handling or storing threshold amounts of hazardous materials during construction
    • Permits for routine transport, use or disposal of hazardous materials (e.g., diesel fuel), if necessary, during construction
    • Site Management Plan and/or Health Safety Plan for contaminated soil, if applicable during construction

Hydrology and Water Quality

    • National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (Construction General Permit), including a construction Storm Water Pollution Prevention Plan (SWPPP) administered by the State Water Resources Control Board

Local Permits/Approvals/Regulations

Air Quality

    • Local Air Pollution Control/Air Quality Management District Air Permits to Construct (or Pollution Control District Determination of Compliance/Small Power Plant Exemption for projects licensed by CEC—e.g., centers incorporating onsite generators > 50 MW)
      • District Prevention of Significant Deterioration/New Source Review and permitting could apply to new/modified emitting units (e.g., best available control technology requirements and/or emissions offsets might be required)
    • District (and possibly local) requirements for emissions created during construction (e.g., exhaust and dust control measures)

Biological Resources

    • Regional Water Quality Control Board (RWQCB) permit for discharge of pollutants/waste discharge requirements during construction, if applicable

Building/Trade Permits (typically handled by local planning/building/public works department)

    • Building/construction permits, grading permits, occupancy permit/certificate
    • Electrical/plumbing/mechanical permits
    • Seismic safety/soil analysis, if applicable
    • Other permits required by local ordinances or planning documents (e.g., fire department permit, tree removal permit, etc.)

Energy

    • Local permitting, if sufficiently small or otherwise exempt from CEC jurisdiction
    • Utility grid interconnection agreement and approval of interconnection costs with local utility subject to utility tariff and tariff of the Independent System Operator (ISO)
    • FERC approval (i.e., market-based rate authority) needed if project involves wholesale transmission of power or wholesale sales of power

Land Use, Planning and Zoning (by local planning agency unless otherwise noted)

    • Any approvals or amendments to planning documents necessary from the local planning department/agency to ensure consistency with local plans (e.g., General Plan, Master or Specific Plan, if applicable)
    • Certified CEQA document (EIR or equivalent or mitigated negative declaration)
      • CEQA process may require adoption of impact mitigation measures during construction
    • Zoning Clearance, or Amendment if proposed uses are inconsistent with allowed uses
    • Specific Use Permit or Conditional Use Permit, if required
    • Site Plan/Design Review (Local planning department/agency or architectural review committee)
    • Site Development Permit or other local permit, if required
    • Telecommunications permit, if required
    • Coastal Development Permit, if necessary (California Coastal Commission (CCC))

Public Utilities and Services

    • Water supply assessment, if applicable
    • Satisfaction of all local agency and utility requirements for water source,
      usage and disposal
    • Local approvals for new utility connections, such as potable water, fire water, recycled water, sanitary sewer and storm drain

For some sites, additional agencies might have permitting or review authority (or broader authority than listed above), including U.S. Environmental Protection Agency (EPA), National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (USACE), California Department of Water Resources (DWR), California Department of Toxic Substances Control (DTSC) and/or the county environmental health agency, California Coastal Commission (CCC), California Natural Resources Agency, California Public Utilities Commission (CPUC), California State Lands Commission (SLC), California Department of Conservation (DOC), California Department of Forestry and Fire Protection (CAL FIRE), California Department of Parks and Recreation, Federal Transit Administration (FTA), U.S. Department of Transportation (DOT), California Department of Transportation (Caltrans), California Highway Patrol (CHP), California Native American Heritage Commission (NAHC), California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA), California Department of Conservation Division of Mines and Geology, and, for the Bay Area, the San Francisco Bay Conservation and Development Commission (BCDC).

Potentially applicable local and regional plans and policies vary by jurisdiction, and policies might include requirements for air quality, groundwater sustainability, habitat, community conservation plans and other issues. Local planning, building, design and code enforcement depend on location, as do municipal permits (grading, building, design review, occupancy and use permits, and other requirements, including potential hazardous materials storage, historic preservation, tree removal approvals/arborist report) and other reports (geotechnical, environmental site assessment, engineering flood potential, noise and vibration, fire water, water supply assessment, etc.).

II.   OPERATIONAL
All permits and approvals for operational activities should be renewed and maintained in good standing, including compliance with all conditions of approval.

Federal Permits/Approvals/Regulations
To the extent required above, comply with terms and conditions during operation.

State Permits/Approvals/Regulations

Air Quality

    • Air Resources Board (ARB) Airborne Toxic Control Measure limits might apply (e.g., for emergency standby diesel-fueled engines)

Hazards and Hazardous Materials

    • Hazardous Materials Business Plan, if handling or storing threshold amounts of hazardous materials during operation
    • Permits for routine transport, use, or disposal of hazardous materials (e.g., diesel fuel)
    • Compliance with California Health and Safety Code regulations for storage tanks
    • Site Management Plan and/or Health Safety Plan for contaminated soil, if applicable

Hydrology and Water Quality

    • NPDES General Industrial Stormwater Permit and SWPPP (State or Regional Water Quality Control Board)

Local Permits/Approvals/Regulations

Air Quality

    • Regional Air Quality Management District/Pollution Control District Permit to Operate (typically renewed annually) for regulated sources

Land Use

    • CEQA process may require adoption of impact mitigation measures during operation

Other

  • ISO27000 and related standards (information security, quality and environmental management)
  • Financial management, data transfer and data broker requirements

III.   CONSIDERATIONS FOR CO-LOCATED POWER PLANTS
Most of the above checklist is equally applicable to a power generating plant that is co-located with a privately owned data center. In addition, there are many more sources of regulatory authority that may have specific application to generation and interconnection facilities. These facilities vary widely in energy source and operational impacts, so this part of the Base Checklist is merely illustrative.

  • California Energy Commission (approval of larger generation facilities)
  • California Independent System Operator (as to interconnection and grid dispatch)
  • California Public Utilities Commission (as to satisfying or demonstrating exemption from certificate of public convenience and necessity or tariff requirements)
  • Federal Energy Regulatory Commission (as to interconnection with the interstate grid serving the Western United States and to the extent of any wholesale sales of power to the grid or other customers)
  • Other affected federal regulatory bodies, such as Nuclear Regulatory Commission (NRC) for nuclear generation

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