South Dakota PUC: Prevailing Wind Park Permit Approved With Conditions

• The South Dakota Public Utilities Commission approved a construction permit for the 219.6-megawatt Prevailing Wind Park on November 20, 2018.
• The permit, for a facility in Bon Homme, Charles Mix, and Hutchinson counties, was granted with over 40 conditions addressing environmental, community, and operational impacts.
• Key conditions modified by the commission included those related to shadow flicker, sound levels, avian mortality, and decommissioning.
• The decision followed a six-month review process, including public and evidentiary hearings, and involved PUC staff, the developer, and eight intervenors.
• Commissioners emphasized balancing landowner rights with development rights, basing their decision on state law and the evidentiary record.

The detailed and modified conditions imposed by the PUC, particularly those addressing environmental, community, and operational impacts like shadow flicker, sound levels, and avian mortality, establish a clear precedent.

On November 20, 2018, the South Dakota Public Utilities Commission (PUC) formally granted a construction permit for the Prevailing Wind Park, a substantial 219.6-megawatt wind energy facility. This pivotal decision, made during an ad hoc commission meeting held in Pierre, allows for the development of a significant renewable energy project across Bon Homme, Charles Mix, and Hutchinson counties in southeastern South Dakota. The approval, however, was not unconditional; it came with a comprehensive set of stipulations designed to address various impacts of the project. The official order detailing these conditions is anticipated to be released by the end of November.

The Prevailing Wind Park project is slated to encompass an expansive 50,364-acre area and will feature up to 61 wind turbines. Beyond the turbines themselves, the facility's infrastructure will include essential components such as access roads for construction and maintenance, underground collector lines to transmit generated power, a dedicated operation and maintenance facility, and four permanent meteorological towers to monitor wind patterns and weather conditions. This approval marks a significant step forward for wind energy development in the region, establishing a framework for how such large-scale projects will proceed.

The permit approval followed an intensive six-month review process, initiated when Prevailing Wind Park submitted its application to the PUC on May 30, 2018. Throughout this period, the commission adhered to state law, which mandates a decision within half a year of receiving a wind energy facility application. The regulatory journey included a public input hearing held in Avon in July, providing an opportunity for community members to voice their perspectives, followed by an evidentiary hearing in Pierre during October, where detailed evidence and arguments were presented.

A diverse group of stakeholders participated in the docket, identified as SD PUC EL18-026, including Prevailing Wind Park representatives, PUC staff, and eight intervenors. Among the active participants in the formal hearing and related proceedings were Gregg and Marsha Hubner of Avon, Paul and Lisa Schoenfelder of Wagner, Sherman Fuerniss of Delmont, Karen Jenkins of Tripp, and Kelli Pazour of Wagner. Both PUC staff and the developer, Prevailing Winds, initially proposed more than 40 conditions covering a range of issues, such as maintaining road conditions during construction, protecting cultural resources, appointing a public liaison officer, and ensuring land restoration post-construction. The commission, however, engaged in extensive discussions on several additional proposed conditions, ultimately modifying those pertaining to shadow flicker, sound levels, avian mortality, and decommissioning protocols.

The commission's decision underscored the complex balancing act required in approving large-scale energy projects. PUC Chairperson Kristie Fiegen acknowledged the "stiff task" faced by the commission and its staff in processing the intricate construction permit request within the statutory timeframe, emphasizing the need to give full consideration to all parties' varied concerns. She affirmed the commission's commitment to following state statute and the authority granted by the state legislature, striving to reconcile the needs and desires of area landowners with those of the wind industry.

Commissioner Gary Hanson, the PUC's vice chair, further articulated this delicate balance, stating that the commission aims to protect both property rights and the rights of citizens. He highlighted the necessity of balancing a person's right to develop their property against the right of others to enjoy their own property without undue intrusion from such development. According to Commissioner Hanson, the approved conditions represent the closest possible legal resolution to these intrusion issues. Commissioner Chris Nelson echoed these sentiments, emphasizing that the commission's decision must be grounded in the evidentiary record presented over the six-month period and within the confines of state law, thereby appropriately integrating competing interests.

This approval for the Prevailing Wind Park construction permit carries significant implications for the future of wind energy development across South Dakota. The detailed and modified conditions imposed by the PUC, particularly those addressing environmental, community, and operational impacts like shadow flicker, sound levels, and avian mortality, establish a clear precedent. Future developers of wind energy facilities in the state, especially those in areas like Bon Homme, Charles Mix, and Hutchinson counties, will likely face similar rigorous requirements.

The commission's thorough review process and its emphasis on integrating diverse interests, as articulated by its members, signal a robust regulatory environment for large-scale energy projects. Legal professionals advising developers or landowners on similar projects should carefully examine these South Dakota wind energy facility conditions to anticipate regulatory requirements and potential areas for negotiation. The comprehensive nature of the permit, documented under docket EL18-026, serves as a critical reference point for understanding the regulatory landscape governing wind farm construction in the state.

This decision establishes precedent for the types of conditions the South Dakota PUC may impose on future wind energy facility permits, particularly concerning environmental, community, and operational impacts. Lawyers advising developers or landowners in similar projects should review these conditions to anticipate regulatory requirements and potential areas of negotiation.

Source: Original reporting via South Dakota Public Utilities Commission.