Posted by: Patricia Salkin | August 16, 2022

SD Supreme Court Upholds Approval of Wind Energy Farm Building Permit

This post was authored by Matthew Loescher, Esq.

Crowned Ridge Wind II, LLC applied to the South Dakota Public Utilities Commission (“PUC”) seeking permission to construct a large wind energy farm in northeast South Dakota. Several individuals from Grant and Codington Counties who were affected by the potential wind farm intervened to oppose Crowned Ridge’s application. The PUC conducted a contested case hearing and thereafter issued a written decision approving the permit. The intervenors sought review in the circuit court. The court affirmed the PUC’s decision and two of the intervenors appealed.

On appeal, the Intervenors first argued that Crowned Ridge failed to meet its burden in establishing that the Project would comply with applicable laws and rules because Crowned Ridge conducted sound modeling based on a zoning ordinance that was amended after Crowned Ridge obtained a CUP. The record reflected that while the PUC was not involved in granting CUPs or drafting the ordinances around which the CUPs are authorized, it nevertheless considered this argument during the contested case hearing and determined that Crown Ridge was already in compliance with the applicable laws and rules in Grant County at the time the permit application was submitted. Furthermore, Crowned Ridge complied with ARSD 20:10:22:23 by providing a forecast of the impact that the construction, operation, and maintenance of the Project would have on solid waste management facilities. As such, the court held that the PUC did not err when it determined Crowned Ridge met its burden of proof to comply with all applicable laws and rules.

 The Intervenors next contended that failing to follow the original Grant County ordinance requiring sound measurements below fifty decibels at accessory structures “runs directly afoul” of SDCL 49-41B-22(3). Here, unrebutted testimony and sound study established that the Project also complied with the fifty-decibel limit even at unoccupied accessory structures. Accordingly, it was not clear error for the PUC to determine that adopting the noise levels set out in the amended Grant County ordinance posed no danger to the health, safety, or welfare of the inhabitants living near the Project.

 As a final matter, the court noted the text of the regulation did not specifically require an air quality study, but merely stated that the applicant must provide evidence that the facility will comply with air quality regulations. The PUC’s determination that Crowned Ridge has done so was not clearly erroneous, as the PUC followed the applicable statutory directives in granting the construction permit to Crowned Ridge and correctly determined that Crowned Ridge satisfied its burden of proof under SDCL 49-41B-22.

 In the Matter of Administrative Appeal Garry Ehlebracht, 2022 WL 3097464 (SD 8/3/2022)


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