South Dakota Energy Facility Permit (8-SD-a)
However, the SPDUC does not have the authority to route a transmission facility, or to designate or mandate the location of an energy conversion facility, AC/DC conversion facility, or wind energy facility. 49-41B S.D. § 36.
The SDPUC is the primary agency with jurisdiction over transmission siting in South Dakota and regulates transmission siting in accordance with the South Dakota Energy Facility Permit Act and 20:10 S.D. §§ 22:01 et seq.. 49-41B S.D. § 37. In addition, the SPDUC is vested with the authority to place conditions upon any permit issued by the SPUDC under the South Dakota Energy Facility Permit Act. 49-41B S.D. §§ 24, 25.
Energy Facility Permit Process
8-SD-a.1 to 8-SD-a.2 – Is the Proposed Project a Transmission Line Project More Than 115kV?
8-SD-a.3 – Is the Proposed Project a Trans-State Transmission Facility?
No utility may begin construction of a trans-state transmission facility within the state without first having obtained a permit from the SDPUC and approval by an act of the South Dakota Legislature. 49-41B S.D. § 4.1. A “utility” includes any person engaged in and controlling the generation or transmission of electric energy and gas or liquid transmission facilities. 49-41B S.D. § 2(12). A “trans-state transmission facility” is an electric transmission line and its associated facilities that originates outside the State of South Dakota, crosses through the state, and terminates outside the State of South Dakota. In addition, a facility may deliver no more than 25% of the facility’s capacity to South Dakota to qualify as a trans-state transmission facility. 49-41B S.D. § 2(11). If the proposed project is a trans-state transmission facility, the developer must obtain approval from the state legislature and a permit from the SDPUC.
8-SD-a.4 to 8-SD-a.6 – Review Proposed Trans-State Transmission Facility Project
Before approving a proposed trans-state transmission line, the South Dakota Legislature must find that the proposed project meets each of the following criteria:
- That the proposed trans-state transmission line and route will comply with all applicable laws and rules;
- That the proposed trans-state transmission line and route will not substantially impair the health, safety, or welfare of the inhabitants;
- That the proposed trans-state transmission line and route will not unduly interfere with the orderly development of the region with due consideration having been given the views of the governing bodies of effective local units of government;
- That the proposed trans-state transmission facility will be consistent with the public convenience and necessity in any area or areas which will receive electrical service, either direct or indirect, from the facility, regardless of the state or states in which the area or areas are located.
8-SD-a.7 – Notice of Intent
A developer must file a Notice of Intent with the SDPUC to apply for a permit for construction of an “energy conversion facility,” a “wind facility,” or an “AC/DC conversion facility” at least six months before filing an application. 49-41B S.D. §§ 4, 6. An “energy conversion facility” is defined as “any new facility or facility expansion, designed for or capable of generation of one hundred megawatts or more of electricity, but does not include any wind generation.” 49-41B S.D. § 2(6). An “AC/DC conversion facility” is an “asynchronous AC to DC to AC tie that is directly connected to a transmission facility or a facility that connects an AC transmission facility with a DC transmission facility or vice versa.” 49-41B S.D. § 2(1). A “wind facility” includes electric interconnection systems related to a “new facility or facility expansion of integrated system towers, wind turbine generators, and power system collections with a generation capacity of one hundred megawatts or more of electricity.” 49-41B S.D. § 2(13).
The notice of intent, at minimum, must include:
- A description of the size and type of proposed facility;
- An estimate of the total cost of construction of the proposed facility;
- An identification of the location of the proposed plant site and a general description of the anticipated affected area;
- A brief statement of social and economic impacts of the proposed facility;
- The anticipated permit authorization date, construction schedule, and commercial operation schedule;
- Any questions or requests concerning the proposed facility, including a request for a pre-filing conference, which a utility may wish to address to the SDPUC; and
- A description of all permits known to be required of the developer by all state, local, and federal agencies.
8-SD-a.8 – Hold Pre-Filing Conference (If Applicable)
A developer may request a pre-filing conference with the SDPUC regarding the proposed project. 49-41B S.D. § 5. The SDPUC must dispose of matters raised during the pre-filing conference within 45 days after the conference. 20:10 S.D. § 22:03.
8-SD-a.9 – Post Public Notice Signs
A developer must post signs on the area where the developer proposes to locate the energy conversion facility or AC/DC conversion facility in order to notify the public. The developer must post the signs in areas that are clearly visible to an ordinarily observant person within 30 days after the filing of the notice of intent to apply for a permit to construct the proposed project. 49-41B S.D. § 5.1. The signs must include the name and contact information of the developer and a brief description of the proposed facility. 49-41B S.D. § 5.1.
8-SD-a.10 – Notify Landowner(s)
The developer must notify, in writing, the owner of record of any land that is located within one-half mile of the proposed site where the facility is to be constructed. The owner of record is limited to the owner designated to receive the property tax bill sent by the county treasurer. The developer must mail the public notice by certified mail. 49-41B S.D. § 5.2.
8-SD-a.11 – Publish Public Notice
The developer must also publish notice in the official newspaper of each county in which the proposed site is located. Notice must be published at least once each week for at least two consecutive weeks and must be published no more than 30 days prior to the date of the public hearing. The second published notice must be made no later than 20 days prior to the date of the public hearing. The notice must contain:
- A description of the nature and location of the facility; and
- The date, time, and location of the public hearing.
8-SD-a.12 – Designate Affected Area and Local Review Committee
Within 30 days of filing a notice of intent, the SDPUC must designate the affected area and a local review committee. 49-41B S.D. § 6. The local review committee will assess the social and economic effect on the community. 49-41B S.D. § 7.
8-SD-a.13 – Energy Facility Application
The developer must file an Energy Facility Application within the SDPUC at least six months prior to the planned date for the commencement of construction of a facility. The application must include, at a minimum, the following:
- The name and address of the applicant;
- Description of the nature and location of the facility;
- Estimated date of commencement of construction and duration of construction;
- Estimated number of employees employed at the site of the facility during the construction phase and during the operating life of the facility. Estimates must include the number of employees who are to be utilized but who do not currently reside within the area to be affected by the facility;
- Future additions and modifications to the facility, which the applicant may wish to be approved in the permit;
- A statement of the reasons for the selection of the proposed location;
- Person owning the proposed facility and person managing the proposed facility;
- The purpose of the facility;
- Estimated consumer demand and estimated future energy needs of those consumers to be directly served by the facility;
- The potential short and long range demands on any estimated tax revenues generated by the facility for the extension or expansion of public services within the affected areas;
- Environmental studies prepared relative to the facility;
- Estimated construction cost of the facility.
When filing the application, the developer must also deposit an environmental impact fee with the SDPUC. The SPDUC will determine the initial deposit amount based upon the estimated cost of investigating, reviewing, processing, and serving notice of an application. 49-41B S.D. § 12. “The maximum fee chargeable may not exceed one-quarter of one percent of the first one hundred million dollars of estimated construction cost plus one-twentieth of one percent of all additional estimated construction costs of the facility. However, the minimum total fee chargeable may not be less than eight thousand dollars.” 49-41B S.D. § 12.
If the SDPUC determines that an environmental impact statement should be prepared before taking final action on an application, the maximum fee chargeable may be increased to an amount not to exceed one-half of one percent of the first one hundred million dollars of estimated construction cost plus one-twentieth of one percent of all additional estimated construction costs of the facility. However, these provisions do not apply in cases in which a detailed environment impact study has been completed pursuant to the requirements of the National Environmental Policy Act and its implementing regulations if such a statement is available to the commission at least 30 days prior to the time the commission is required to render a decision under § 49-41B-24 or § 49-41B-25. 49-41B S.D. § 12.
8-SD-a.14 to 8-SD-a.16 – Review Application Materials
The SDPUC reviews the application materials for administrative and technical completeness. The SDPUC may deny, return, or request an amendment to an application for:
- Deliberate misstatements of material fact;
- Failure to file generally in form and content; and
- Failure to pay the deposit amount with the application.
The SDPUC may also request further information from the developer. 49-41B S.D. § 14.
8-SD-a.17 – Hold Pre-Hearing Conference (If Applicable)
The developer may request a pre-hearing conference. If the developer requests a pre-hearing conference, the SDPUC must schedule and hold a pre-hearing conference. 49-41B S.D. § 14.
8-SD-a.18 – File Final Report
Within seven months after the application is filed, the local review committee must file a final report with the SDPUC. The report must include the recommendations of the committee as to mitigation measures and minority reports. 49-41B S.D. § 10.
8-SD-a.19 – Publish Public Notice of Public Hearing
The SDPUC must schedule a public hearing, give notice of the hearing to the developer, and publish public notice of the hearing within 30 days of receipt of a complete application. 49-41B S.D. § 15.
The SDPUC must also notify the local authorities about the public hearing and file a copy of the application with the auditor of the county where the construction of the energy facility will take place. 49-41B S.D. § 15.
8-SD-a.20 – Hold Public Hearing
The SDPUC must hold a public hearing regarding the application within 30 days of publishing public notice of the hearing. 49-41B S.D. § 16. The SDPUC must hear the local review committee’s final report at the public hearing. 49-41B S.D. § 20.
The developer has the burden of proof to establish:
- The proposal complies with applicable laws;
- The facility will not pose a threat to the environment or socio-economic conditions of the inhabitants in the siting area;
- The facility will not impair the health, safety, or welfare of the inhabitants; and
- The facility will not unduly interfere with the development of the region.
8-SD-a.21 to 8-SD-a.24 – Notice of Decision
After reviewing the application materials, in conjunction with the testimony from the public hearing, the public comments received, the local review committee’s final report, and information on environmental, social, and economic impacts of the project from other local agencies, the SDPUC must make a decision on the application. 49-41B S.D. § 19; 49-41B S.D. § 24. The SDPUC must make a decision whether to grant, deny, or grant upon conditions the permit within one year of receiving the application. 49-41B S.D. § 24.
Prior to issuing a permit, the SDPUC may prepare or require the preparation of an environment impact statement. 49-41B S.D. § 21. For more information, see:
SDPUC must give notice of permit decision to the developer and parties to the hearing within 10 days following the decision. 49-41B S.D. § 25. If the SDPUC denies the application, the developer may resubmit the application within three years. 49-41B S.D. § 22.1. If there are no material changes to the proposed project, the burden of proof will remain the same. 49-41B S.D. § 22.2. Deposits and fees will be required upon reapplication. 49-41B S.D. § 22.3.
8-SD-a.25 – Appeal Decision (If Applicable)
Any party to a permit issuance proceeding aggrieved by the SDPUC’s final decision on an application may obtain judicial review of that decision by filing notice of appeal in circuit court. 49-41B S.D. § 30.
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