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A Wildcatter’s Collapsed Dream is Now the State’s Problem

Posted on: March 31st, 2019
by David Ganje


In this opinion piece I write about public waters and a wildcatter’s abandoned oil well.  The matter did not pan out well for the wildcatter or the state. 

 South Dakota relies on groundwater as one of its main sources of freshwater for domestic, municipal and agricultural purposes.  Groundwater is found in porous subsurface rocks called aquifers.  Aquifers are usually close to the surface. In contrast, oil and gas deposits are usually deeper and are often found several thousand feet below the earth’s surface. Because of this difference in location, oil and gas exploration and production can involve drilling through aquifers to access potential oil and gas production zones.

Oil and gas wells might contaminate groundwater in different ways. One is an event in which an exploration or production well causes separate aquifers to connect; this is particularly challenging where one aquifer may contain useable, potable water and the other contains bad water.   An improperly plugged and non-operating oil and gas well could act as a pathway.  A connection between different aquifers is sometimes called communication in hydrological terms.  A well borehole drilled through a layer separating two confined aquifers represents a possible conduit for the migration of contaminants between the aquifers – if that borehole is not properly plugged. 


The public trust doctrine holds that groundwater and surface water within the state’s jurisdiction must be preserved in perpetuity for the public. The government of South Dakota through its various departments and boards serves as the trustee of this natural resource to maintain waters for the benefit of current and future generations. Neither public nor private interests are allowed to harm waters held in public trust.

The South Dakota Supreme Court in 1964 held that legislation was justified in determining that the public welfare requires protection of the state’s water supply. In a 2004 decision the Supreme Court found the public trust doctrine manifested in the state’s Environmental Protection Act authorizes the state to protect the air, water and other natural resources from pollution impairment or destruction.  In that 2004 case the Court ruled, “In conclusion, the public trust doctrine imposes an obligation on the State to preserve water for public use. It provides that the people of the State own the waters themselves, and that the State, not as a proprietor, but as a trustee, controls the water for the benefit of the public.”


 A public trustee is not a business ‘proprietor.’  The public trustee is required to manage, oversee, preserve and protect a natural resource put under its control.  The public trustee may be any of several different state departments or boards concerning a range of situations.   In a public trust the government’s obligation is protecting waters for the benefit and use of the public.  A trustee’s duty is to preserve and to not abdicate or delegate legal responsibilities.  A public trustee may delegate certain tasks, but not its obligation to protect the resource.  I define a public trustee as a natural resource manager exercising a public conscience guided by equity and the law.  Equity as a principle will not suffer a wrong to be without a remedy.

I present here background in order to discuss the Wasta well issue.  The first matter was described:  the state is trustee of the waters held under the public trust doctrine.  What are relevant supporting statutes and rules which provide a public trustee with remedies?  I will list.  These remedies place financial responsibility on the permit holder, not the state. The state’s Environmental Protection Act is discussed in my prior comments.  In addition the Board of Minerals and Environment (Board) may enforce violations of state oil and gas law, of state oil and gas rules and of its own issued orders.  On the issue of plugging unused or abandoned wells, the operator of a well is civilly liable, if in violation, and is further responsible for plugging a well.  The Board also sets certain statutory performance bonds required of a permit holder.  And by statute “The Board may require additional bond [sic] if the circumstances require.”  The Board has further authority to declare penalties, as well as civilly prosecute a party for money damages and for harm caused to the environment.  This authority is broad and covers all persons and property whether public or private.  And in addition state government, through the DENR, can prosecute an oil and gas permit holder for public nuisance.  The remedies available for a public nuisance are a 1.) a civil money judgment; 2.) a judgment requiring an abatement of the nuisance; 3.) and a criminal prosecution.  The reader will please observe which remedies the state used (and did not use) in addressing the problem under discussion.

A few years ago a wildcatter received its oil and gas exploratory permit.  The company started drilling the exploratory well near Wasta.  The target was the Precambrian formation which lies about 9700 feet below where the deer and antelope play.  In this piece I also refer to the permitted well as the Wasta well. The DENR and the Board were required to scrutinize the applicant’s papers and its background information before considering approval of the permit.  A permit applicant’s competency and the bonding amount are factors the state is obliged to consider.  From the beginning of the process there are questions about the trustee’s due diligence and the applicant’s qualifications. Two bonds were required for the Wasta well all totaling $130,000.  In early papers considering permit approval the DENR stated 1.) the wildcatter submitted no documentation or information substantiating that oil or gas was likely to exist in economic quantities in the locations proposed; 2.) the applicant submitted invalid mineral leases and incomplete application paperwork; 3.) the applicant had no experience drilling oil and gas wells; 4.) the applicant had no experience producing oil or gas; 5.) the applicant did not disclose the identity of a well drilling contractor; 6.) the applicant refused to disclose that oil or gas exists in its target area; 7.) and the state determined the Precambrian formation is a formation from which neither oil nor gas has been found in economic quantities.  This wildcatter was walking on a thin line from the get-go.

Very shortly after drilling began the driller lost drilling fluid circulation in the well, and a drill stem got stuck in the borehole.  In efforts to fix the problem the well borehole collapsed in on itself.  The wildcatter was then unable to access the stuck drill stem.  All efforts came to a standstill, but some surface reclamation was completed.  The well was not plugged following permit requirements and no casing was in place protecting two major aquifers.  Several years later the state began the process of revoking the permit and forfeiting the bonds which totaled $130,000.  Just a few months after the state’s case closed, a remaining investor legally dissolved the wildcatter company. The original principal investors of the wildcatter company, after the project turned sour, vacated or chose not to appear in the jurisdiction.  For those not familiar with legal terms – the original principal investors got the hell out of Dodge before the sheriff showed up.

 In the state’s contested case hearing South Dakota presented two state employees as witnesses.  One was a state hydrologist and the other the state geologist.  No outside experts or specialists were called.  The testimony showed that the Wasta well had not been plugged according to permit requirements, and that no casing was put in place protecting two major aquifers. The hydrologist testified that the upper of the two aquifer is good quality water currently used by well water permit holders.  The hydrologist stated the potential impact of any pollutants or mineralized water going into the upper aquifer was limited.  The witness forthrightly acknowledged that the department did not know exactly what was happening underground at the well site.  The hydrologist also testified there was no baseline water quality data for the area near the well or specifically for the well itself.

The geologist testified that the state does not have any pre-drilling water quality information and does not have post-drilling water quality information for the well site.  The geologist stated, “We have really no ability to make an opinion on pre-drilling versus post-drilling water quality at that site.”  The witness testified the cost of a single new water monitoring well would be about $126,000.  The geologist also indicated because of the slowness of water movement in the good aquifer and because of a dilution effect from any bad water which might be introduced into the good aquifer, the risk to the water-using public was minimal.  And the geologist opined, “We would be ill-advised to spend the money to put in one well which is all the well we have the money for when we don’t know the best depth or best location to put that well.”

After the hearing the permit was revoked and the bond money forfeited.  And the Board decided that:  1.) the cost of an operation to plug the penetrated aquifers would be in excess of 2 million dollars;   2.) the Board did not have sufficient data regarding the lower aquifer to make a precise estimation of water quality; 3.) the well borehole provides a potential pathway for upward flow of water to the good upper aquifer; 4.) it was unknown whether communication “is or may occur” between the two aquifers but that the flow of effected water would be minimal; 5.) and that failure to properly plug the well “still presents a danger of communication” between the aquifers.

Since the hearing the state has not used the bond money or taken other legal or administrative action.  What other remedies listed above were available but not used?  The obligation of the state as trustee is to protect public waters.  Should a demand for perfection in science subvert the trustee’s obligation for oversight and resource preservation?  Should a water monitoring well be drilled only if contamination has been proven? Should other DENR funds be used besides the forfeited bonds to protect and monitor public waters?  Is a public trustee relieved of taking action – except when an established harm is proven?  South Dakota, its leaders and courts over the years since statehood have each spent sweat equity creating a fair system for the use and protection of the waters of the state.  In the Wasta well case the state is sacrificing the good for the perfect.  A public trustee does not fulfill its job by acting only on mathematic principles, or by waiting for scientific guarantees before taking action to protect a natural resource. 

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law

Naked In The Wind

Posted on: March 12th, 2019
by David Ganje

Wind energy development is known as green energy.  Green energy is sexy.  Everybody wants to jump on the bandwagon but few want to pay for the ride.   A wind farm produces green energy.  A wind farm itself is not green.  It is steel, wires, underground cabling, electrical components and concrete.  This describes the infrastructure of a government-permitted wind farm.  Larger wind farm projects in South Dakota are subject to PUC jurisdiction regarding the permit application process and wind farm project oversight.  This opinion piece focuses on projects under the jurisdiction of the PUC.  Discussion of projects under the jurisdiction of the various wayward counties is left for another day.

In the eyes of a lawyer, which is not very romantic, when a wind farm contains steel, wires, underground cabling, electrical components and concrete we have potential legal liability.  Wind farm infrastructure is not owned by the landowner.  It is owned by the wind farm operator.  A landowner has no right to control or interfere with a wind farm. Who may be liable and to what extent is always an interesting legal question.  A court calls this the allocation of liability.  It is best not to become involved in a question on the allocation of liability.  General liability insurance coverage is one way in which liability risks are reduced.

The natural desire of a wind farm operator to protect its investment as well as a property owner’s natural desire to protect his land from liability are compatible ideas.  Alas, the state of South Dakota is negligent; it does not require liability insurance coverage by wind farms.  The conflicting and coexisting state policy of both encouraging green energy development and practicing laissez-faire wind farm oversight is dead wrong.   A landowner, farmer or rancher on whose land a wind farm sits is the odd-man-out under the state’s current wind farm permitting process.

A government-permitted wind energy project creating electrical power is the definition of a wind farm.  A wind farm is a public project permitted and overseen by the PUC because of its significant impact on the state and its people.  Wind farm projects have a beginning, a middle and an end.  The beginning is the development and construction stage, the middle is the operational phase and the end is the end.  (The end of wind farm operations, whether by abandonment of the turbines, bankruptcy, or shut down by an operator is ‘The funeral’ of the operating project.)  All three stages offer potential risks arising from claims or accidents related to wind turbines, wind farm operations and wind farm infrastructure.  Importantly, these risks exist whether the wind farm is operating or not.

While I note the chief financial beneficiary of a newly written liability insurance policy is at first glance the insurance agent who wrote the policy, all the same – insurance should have an important role in PUC permitting and in the PUC’s project oversight.  South Dakota law does not require that a wind farm carry general liability insurance.  Wisconsin and North Dakota law require this.  General liability insurance provides two areas of coverage for an insured party, that is, for the wind farm operator.  A general liability policy covers bodily injury and property damage.  Now to be clear, wind farm operators often have some insurance coverage. For example, a wind farm’s lender might require insurance.  Yet when a loan is paid off such a lender’s insurance requirement would end.

I am now obliged to make my case for project-wide wind farm general liability insurance.  If there are one or two sceptics out there among my numerous followers, my honorable readers should know I am not a lobbyist for and do not represent insurance companies.  I propose a correction in the deficient and inequitable policy and practice of the PUC.  The PUC should by law and or policy require project-wide general liability insurance.  In my discussion in favor of insurance coverage I will:  a.) first report the current lay of the land; b.) and then report the lay of the land as it should be.

The current lay of the land:  Is an operator uninsured, underinsured or inadequately insured?  Does the wind farm maintain a level of insurance providing for the type of loss or claims common to an operation?  The PUC has no answer.  South Dakota does not require that a wind farm maintain project-wide general liability insurance coverage.  Both North Dakota and Wisconsin do.  A recent wind farm permit approved in 2019 by the PUC will be used as an illustration.  This wind farm development and operation was approved with 42 permit conditions to be met by the operator.  These conditions were placed on it by the PUC.  None of the 42 conditions required project-wide general liability insurance.  The lengthy official application and approval file shows no indication of such insurance coverage.  Naked in the wind.

The lay of the land as it should be:  A wind farm operator should maintain general liability insurance relating to claims for property damage and/or bodily injury which may arise out of the development, construction, operation and closure of the wind energy project.  A wind farm operator should maintain the required insurance coverage until such time as the PUC authorizes the termination of the coverage.  The amount of coverage and required terms of the insurance should be set by the PUC in the course of its public process when considering a permit application.  The amount of insurance coverage and required terms of insurance coverage should be described in an order granting a permit.  Cancellation by an operator of the required insurance coverage should be prohibited.  Property owners on whose land a permitted wind turbine or turbines are located should be named as additional insureds on the required insurance policy.  The insurance policy should contain an endorsement obligating the insurance company to provide the PUC with at least 30 days prior written notice of any cancellation. No more than 15 days after the granting of a permit but before construction is started the permit holder should deliver a full and complete copy of the required insurance policy to the PUC.  An insurance policy received by the PUC under these provisions should remain a part of the public record, not be sealed, and not be subject to proprietary or confidential claims by an operator.

Conclusion:  The reasoning of government is a most uncertain thing. Will the state demonstrate leadership as well as equity and decide to change the law and its current practice of not requiring general liability insurance?  Come see me in two years and we will cry together.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law

SD weighs in on the dormant mineral laws

Posted on: February 19th, 2019
by David Ganje

A  recent South Dakota Supreme Court decision, Holsti v. Kimber, has shed light on two areas of the dormant mineral act, previously untouched by South Dakota’s highest court: first, what constitutes “use” and “nonuse” of a mineral interest in order for a claimant to keep ownership of the mineral interests, and second, who may exercise that “use” of mineral interests. Though other issues remain unanswered following the decision, the ruling suggests what a mineral interest owner may do to prevent lapse of one’s mineral interest and what a mineral interest owner may do to keep his interest in a mineral estate. This case is the first time the South Dakota Supreme Court has addressed head-on dormant mineral laws.

South Dakota defines a mineral interest as “any interest, in oil, gas, coal, clay, gravel, uranium, and all other minerals of any kind and nature, whether created by grant, assignment, exception, reservation, or otherwise, owned by a person other than the owner of the surface estate.” A mineral interest is considered abandoned if it is “unused” for 23 years (20 years in North Dakota), and a statement of claim is not recorded within that time. I call this the “Mineral Rights Grace Period.” Upon an abandonment, that is a non-use, the surface estate owner may succeed to the mineral interest of another claimant.

In order to maintain ownership of a mineral interest and avoid lapse, the mineral interest must be “used.” “Use” under the statute may include one of several statutorily defined “uses.” One such “use” relevant to this case is:

Any conveyance, valid lease, mortgage, assignment, order in an estate settlement proceeding, inheritance tax determination affidavit, termination of life estate affidavit, or any judgment or decree that makes specific reference to the mineral interest is recorded …

It is the burden of the mineral interest owner to maintain his interest. Upon lapse, the burden shifts to the surface estate owner (the landowner) to take steps to succeed in the mineral interest. In Holsti, the issue before the court was whether the mineral interest owners fulfilled their burden to maintain their interest in the mineral estate.

The facts of the case: in 1967, Severt Kvalhein conveyed real property to Holsti and recorded the deed. In the sale Kvalhein reserved 50 percent of the mineral rights for himself. Two years later, in 1969, Kvalhein died and his estate was devised to eight heirs, each heir taking a one-eighth interest in the minerals.

In 2007, Holsti conveyed his surface estate to his sons (“the Holstis”). In December 2011, the Holstis published a notice of lapse of mineral interest in the official county newspaper in according with the statutes to recover mineral interests. No one responded by recording a statement of claim asserting ownership of the mineral interest. The Holstis filed a quiet title action in May 2012 alleging abandonment of the mineral interest due to “nonuse.”

Kvalhein heirs answered and rejected the argument that the mineral interest was abandoned. In their defense, the heirs referenced several 1978 oil and gas leases, a 1994 statement of claim by one of the heirs, and two mineral deeds recorded by one of the heirs in 1998 and 2011.

The court looked to whether the Kvalheim heirs had a valid mineral interest at all. The trial court had decided they did not have a valid interest because no document was recorded evidencing transfer of the mineral interests to the heirs and reasoned that “use” of a mineral interest could only be done by a “record owner.” The Supreme Court rejected that reading of the statute and found that the heirs did not need a recorded written document conveying Kvalheim’s mineral interest to them. The court found the Kvalheim’s last will and testament, though unrecorded, was sufficient to convey the mineral interest to the heirs upon Kvalheim’s death.

Once the court determined the heirs had an interest in the mineral estate, it next turned to whether or not that interest had been abandoned due to “nonuse,” or if the heirs had satisfied “use” requirements. The circuit court found the 1978 oil and gas leases recorded by the heirs were insufficient because they did not make specific reference to the mineral deed recorded by Kvalheim in 1967. The Supreme Court disagreed. Because the language of the statute does not specifically use the words “record holder” or “original deed” the court held the only two requirements for a recorded oil and gas lease to satisfy “use” were: 1) a specific reference to the mineral interest in question and 2) recording in the county register of deeds office. Because the heirs’ oil and gas leases specifically referred to the legal description of the mineral and because the leases were recorded in the proper county’s register of deeds office, the Court found the leases to be sufficient as “use.” (In a similar 2013 case decided by the North Dakota Supreme Court, Estate of Christeson v. Gilstad, the court also found that a legal mineral interest owner by inheritance, but not a record owner, could record an oil and gas lease to preclude abandonment of the mineral interest).

By exercising their rights as mineral interest holders and recording oil and gas leases in 1978, the Kvalheim heirs reset the clock back to zero on the 23-year test for abandonment. Therefore, from the last recorded lease in 1978, the heirs had 23 years in which the surface estate owners could not claim abandonment. Before the expiration of the 23 years (1978-2001), two Kvalheim heirs recorded documents sufficient to toll the clock back to zero again: in 1994, one heir recorded a valid statement of claim; and in 1998 and 2011 two valid deeds were recorded conveying the mineral interest between heirs. The court found both the statement of claim and mineral deeds constituted a “use” under the law and precluded abandonment. The court did not decide and instead remanded to the circuit court an additional issue: whether these two “uses” by Kvalhein heirs were sufficient to preserve the other six heir’s mineral interests.

In their holding, the court has clarified who may be a mineral interest holder and what they must do to satisfy the burden of “using” their mineral estate. This clarification is to the benefit of mineral interest holders because non-record holders may still protect their interests (though, it would be better practice to record an interest). Interestingly, in this case the mineral interest claimants were able to keep their claims even though the claims came through a will that was never probated.

David Ganje of Ganje Law Offices practices natural resources, environmental and commercial law.

 

 

David L Ganje
Ganje Law Offices
Web: lexenergy.net

605 385 0330

davidganje@ganjelaw.com

Proposed Campbell County Temporary Zoning ORDINANCE #2019-1

Posted on: January 28th, 2019
by David Ganje

To:  Campbell County Commissioners

 

From:  David L Ganje, attorney   //   605 385 0330

davidganje@ganjelaw.com

 

Re: Proposed Campbell County Temporary Zoning ORDINANCE #2019-1  (called in this memo the “proposed ordinance”) ((reference also made to the first memo I sent to the Commissioners, which is on file with Campbell County Auditor and is dated August 15th, 2018))

  1. PROPOSED ORDINANCE CONTAINS INAPPROPRIATE SUBJECTS. As a whole, the proposed ordinance was not reviewed by those in charge. Extensive subjects are included in the temporary ordinance which are not a part of a temporary, emergency ordinance under South Dakota law. The ordinance covers several subjects immaterial to wind energy development. Under state law, temporary ordinances are not to be comprehensive. A temporary zoning ordinance “regulates uses and related matters as constitutes the emergency.”[i] The immediate issue before the commission is the proposed phase 2 of a wind energy project. Yet the proposed ordinance addresses “Bed and Breakfast Establishments,” “Concentrated Animal Feeding Operations,” “Asphalt Mixing Plants,” and other non-wind farm matters. The proposed ordinance contains improper subjects “not necessary to protect the public health, safety, and public welfare.” This is particularly true because Campbell County does not yet have, and has not yet publicly considered or adopted, a written comprehensive zoning plan for the county. It is unusual for a law-drafter to put in more language than is necessary when writing a law. The proposed ordinance leaves me puzzled and concerned.  That which “constitutes an emergency” is not 99 pages of stuff dealing with bed and breakfasts, CAFOs, asphalt plants and the like.
  2. PROPOSED ORDINANCE IS A FULLY INTEGRATED ZONING ORDINANCE. The 99 page proposed ordinance cannot be legally adopted. It is a fully integrated planning and zoning ordinance — it even presents itself as such. It is not an emergency, temporary ordinance.  By way of illustration, the following language is found in the proposed ordinance, “WHEREAS, the Planning Commission and Board of County Commissioners has given due public notice to a hearing relating to zoning districts, regulations, and restrictions, and has held such public hearings.” Not only is this false—no such public hearings will be held before February 7th, 2019—these procedures are not for temporary zoning ordinances, they are for a fully integrated zoning ordinances, which are comprehensive. The word ‘temporary’ only shows up once in the whole ordinance — in its title. Just as problematic, the proposed ordinance asserts a comprehensive plan has been adopted by the county. This has not occurred. The county has not adopted a comprehensive plan. These statements and assertions are false. A fully integrated zoning ordinance cannot be enacted under the state’s temporary zoning statute.
  3. THE COMMISSION CANNOT ADOPT THE PROPOSED ORDINANCE. Because the proposed ordinance contains subjects unrelated to an emergency and holds itself out to be a fully integrated zoning ordinance, it is not a “temporary zoning ordinance.” The county did not follow lawful procedures for ordinance adoption. SDLC Chapter 11-2 requires two separate and publicly noticed meetings for a county to enact a general zoning ordinance that is not temporary.  First, after public notice, “[t]he planning commission shall hold at least one public hearing on the … zoning ordinance [and] … submit its recommendation to the board.”[ii] Second, “[a]fter receiving the recommendation of the planning commission[,] the board shall hold at least one public hearing on the … zoning ordinance[.]”[iii] These two provisions require at a minimum two public meetings for zoning ordinance adoption.  Without correct content and procedures an ordinance is invalid, and it may be challenged.[iv]
  4. ONLY THE PHASE 2 PROJECT DEVELOPER WAS CONSULTED ON PROPOSED ORDINANCE. It is inappropriate that the commissioners held no public meetings or public working meetings with residents on the proposed ordinance yet consulted with a project developer (sometimes called an operator or facility owner). On January 18th, a representative of the county, its zoning expert, told me the Campbell County Commissioners sought the advice of c­­ounty residents, the county state’s attorney, and the developer for the phase 2 wind farm project on the ordinance. My clients are not aware of any county resident that was approached by the commissioners. I know I was not approached by the commissioners, even though I submitted for my clients an extensive memo that addressed the ordinance last August. I am concerned about a conflict of interest for commissioners should a wind farm developer later seek a permit from the same county officials, some of whom may have worked with the developer in the writing of the very same proposed ordinance.
  5. FAILURE IN ORDINANCE WRITING PROCESS — NO PUBLIC ADVICE. On the subject of a new wind ordinance, in the August memo referenced above, I asked the commission not to do everything at the last minute: “Campbell County in July outsourced to a consulting agency the preparation of a wind farm zoning ordinance. I understand the county wishes to adopt an emergency and temporary ordinance. While commissioners will be the ones to formally adopt any ordinance after normal county public notice procedures, it is respectfully submitted that the process would be well served by requiring that the consultants themselves seek public input from landowners and residents at the early drafting stage, rather than wait until final ordinance readings.” In this memo, I also asked the commission to make efforts to educate the public early in the process: “I respectfully suggest the commission regard in a comprehensive manner, and help the public understand, any proposed ordinance as well as related land use issues …. Uncertainty… often leads to controversy.” The recent 99 page proposed ordinance was just sprung on the public. Why weren’t there any commission work sessions open to the public for a committee or the commission to discuss the ordinance terms? Why didn’t the county’s hired expert hold any public listening sessions? In August of 2018, I invited the commissioners to contact me. Neither I nor my clients heard from them. Neither I nor my clients heard from any special committee members the commissioners appointed either. Finally, on January 16th, 2019, the commission issued a 99 page proposed ordinance and—at the same time—set one public hearing for it. Interested residents and landowners experienced radio silence concerning the language of a proposed ordinance from July 2018 until the proposed ordinance was filed and presented to the public for the first time on January 16th, 2019. While the commission may argue it is acceptable to hold only one public meeting at the end of a serious lawmaking process, I observe here a disregard by the county for any meaningful participation in the lawmaking process by interested county residents.
  6. PROPOSED ORDINANCE IS 99 PAGES. We have a handsome number of legal issues in the proposed ordinance. The commission should nevertheless please understand I was not hired to write an ordinance. Please further understand it is not my charge to either rewrite the proposed ordinance or to critique the whole 99 pages. Therefore, I will, wherever possible, only address the current emergency zoning issue at hand, which means the proposed ordinance’s language and terms related to wind energy. In addressing the various legal issues the commission should please recall that an emergency and temporary ordinance should “protect the public health, safety, and public welfare.”
  7. SETBACK PROVISIONS IN PROPOSED ORDINANCE ARE INADEQUATE. We start with paragraph 5.24.03.2. of the proposed ordinance, entitled “setbacks.” The proposed language provides for a greater setback from a town than it does from a rural residence. That is unsupportable – a home is the same wherever a home is.[v] Further, a relevant portion of the proposed ordinance states, “Distance from existing off-site residences, shall be at least one thousand (3,960) feet.” The numbers (3,960) do not reflect the stated distance (one thousand feet). The preceding quoted language is vague, void, and not enforceable. Equally as important, the suggested setback distances in the proposed ordinance are inadequate. I submit the correct distance from off-site residences in the proposed ordinance should be “one and a half (1 ½) miles.” A distance of a mile or more is found in South Dakota[vi] and in other jurisdictions[vii]. “If there is a consensus among independent authorities, it is for more distant setbacks, measured in miles. The same pattern is shown in jurisdictions that have taken the time to research the topic and reach their own independent conclusions.”[viii] The proposed ordinance only protects “existing” off-site residences and measures this setback from a “primary building.” The word “existing” causes ambiguity in the proposed ordinance (i.e., how do we know if a residence is “existing,” who determines if a residence is “existing,” etc.?) It also prejudices future non-commercial construction and development of rural private property. What if my clients, or any private citizen, wants to construct a residence on a property after the ordinance is adopted? Future construction is not protected by the current ordinance terms.
    Sub-paragraph 5.24.03.2.b. should read: “Distance from off-site residences, business, churches, and buildings or structures, shall be at least one and one-half (1 ½) miles. Distance to be measured from the wall line of the neighboring principal buildings to the base of the WES turbine.”
  1. PROPOSED ORDINANCE DOES NOT PROTECT ROADS. County road haul agreements are contracts between the county and a developer. These standard agreements REQUIRE permitted wind farm developers or those completing other county permitted activities to restore public roads back to their original condition.[ix] Written road haul agreements are useful and are quite common throughout the state. The boilerplate (one might call it form language) Campbell County language in the proposed ordinance DOES NOT require a road haul agreement.[x] This Campbell County language was unsuccessfully used a few years ago in another South Dakota county; in 2016, Codington County adopted identical ordinance language.[xi] But in 2018, Codington County experienced road problems and amended its ordinance.[xii] Road damage needed to be addressed in the ordinance. The template language did not protect the county and its residents from road damage, which was allegedly caused by wind farm development.[xiii] The exact language Campbell County wants to adopt failed to protect Codington County roads because it did not require a road haul agreement. Why would Campbell County adopt the same “cut and paste” language without considering its history? Why the county take did six months to write and pay others to write an ordinance whose form language all but guarantees problems from the get-go? The Campbell County language is a cut and paste job from other ordinances. The danger of “cutting and pasting” from other old ordinances is one of the risks I mentioned in the August memo. That advice was ignored by Campbell County ordinance drafters.
    The following ordinance language is reasonable: Along with a written and county approved county road haul agreement, it is required, at the time of permitting a project, that a project applicant must prove financial assurance is in place to promptly repair damaged county roads. 
  1. NO REQUIREMENT FOR SITE PLAN AND ENGINEERING DRAWINGS. The proposed ordinance does not have a requirement for a developer to submit a site plan and engineering drawings when the developer files a conditional use permit application. The only requirement is to submit a site plan and engineering drawings “for the feeder lines before commencing construction.” Under the proposed ordinance, the public has no information on the technical terms and nature of a proposed new project even though the county could still “approve” such a project.
    The following is missing in the proposed ordinance: a conditional use permit application for a project shall include a completed site plan and related engineering drawings.
  1. SERIOUS DECOMMISSIONING PROBLEMS IN PROPOSED ORDINANCE. Under the proposed ordinance, a decommissioning plan IS NOT to be publicly filed until “120 days after construction is completed.” Under this ordinance term, a wind farm would be fully completed and then, and only then, would the developer tell the public how it handles the project’s “end game.”[xiv] Further, the ordinance provides NO PUBLIC REVIEW, hearing, and approval process for a decommissioning plan. The developer sets the terms without consideration of a public hearing and approval process. The public and county should have a right to understand and approve the specifications a developer has in its written decommissioning plan at the same time the developer seeks approval for the very project. It is a little late for the car owner to buy car insurance after he has had an accident.[xv] The construction of any wind development project is significant.[xvi] Under the proposed ordinance, for example, the developer only has an obligation to remove underground cables, foundations, buildings, and ancillary equipment to a depth of four (4) feet. Contemporary turbines are larger than in the past, electrical requirements are critical, more roads are necessary, and wiring and cabling of substations is expensive and requires a lot of construction activity.[xvii] Should all of this development be approved by the county without the public first being told how it will all be dismantled by the operator if and when dismantling becomes necessary? If a developer knows its plan, does the economic tests for project feasibility like a cost-benefit analysis, and takes the advice of engineers and experts who have reviewed and approved a proposed project, then that developer will also have sufficient project information and technical savvy to — at the same time as applying for a permit — disclose how the developer plans to decommission its project.
  2. NO PUBLIC NOTICE AND HEARING FOR SOIL EROSION PLANS. The proposed ordinance does not require any public participation or county approval—all following a public hearing with requisite notice— on the important matter of a soil erosion, dust management, and sediment control plan.[xviii] The ordinance merely requires a developer “file” a soil plan. Further, under the proposed ordinance the plan need not be filed at the time of the permit application. The proposed ordinance, throughout, consistently allows for modest disclosure without an effort to provide due process for county residents and property owners.
  3. NO ADEQUATE BONDING REQUIRED FOR WIND ENERGY PROJECTS.  The proposed requirements for financial assurance are nonexistent. The proposed ordinance states, “After the tenth (10th) year of operation of a [wind farm], the Board may require a performance bond. . . .” The Board is not required to set a bond or required to ask for financial assurance of any type. The county has the authority to waive the requirement entirely or set it too low to really matter. Financial assurance by the developer should be required at the time the project is approved. Projects involving some government oversight are usually regulated because of a project’s environmental or property rights impact. The purpose of regulation is to safeguard the public in the event of a problem arising from such a project. End-of-life decommissioning is a common contingency event.  Proper planning, evolving around the full life of a proposed project, is key.  But government is not always well endowed with the skills to protect the public from end-of-life events. What if a project is abandoned or bankrupt in year one, two or three? And indeed what are the financial criterion for the county in setting the financial amount for a project? There are none under the proposed ordinance. Recent experiences in South Dakota on this subject spotlight this problem. A few years back, a state-licensed grain company (in the old days we called them grain elevators) by the name of Anderson Seed Company went belly up. Authority for setting bonds was then and still is given to the S.D. PUC. The bond for Anderson was set at $100,000 — $2.6 million was lost. The insolvency of the company resulted in a little over 4 cents on the dollar paid back to those parties who lost money in the insolvency. The bond was inadequate. The payout to the innocent grain sellers/producers was inadequate. The end-of-life planning was not well done. This experience resulted in a change in the law, but that change is itself an incomplete effort at planning a project end-of-life, that is, a decommissioning event.
  4. NO LIABILITY INSURANCE REQUIREMENT IN PROPOSED ORDINANCE.  The proposed ordinance has no insurance requirements for a wind farm operation or wind farm construction. Why would Campbell County not require general liability insurance on a large construction project and also not have the county named as an additional insured? The U.S. Department of Energy recommends local wind ordinances have an insurance provision.
    One recommendation states there “shall be maintained a current general liability policy covering bodily injury and property damage. Certificates shall be made available to the county.”
  1. PROPOSED ORDINANCE DOES NOT REQUIRE ANY INDUSTRY STANDARDS.     The proposed ordinance does not require inclusion of wind industry standards for construction, operation or demolition of a wind farm project, other than those required for aircraft safety.  However the Campbell County proposed ordinance requires industry standards for other non-wind projects. Why would a wind farm project get a free pass on industry standards when other non-wind farm projects to be approved by the county do not get a free pass on industry standards?
    An acceptable industry standard for a wind energy facility would state, “The design of a Wind Energy Facility shall conform to applicable industry standards, including those of the American National Standards Institute.  The Applicant shall submit certificates of design compliance obtained from relevant certifying organizations.”
  1. CONCLUSION AND ADVISORY NOTE.  This memo does not cover all legal issues that exist on the proposed ordinance. You are respectfully advised that issues, statements, and questions presented herein do not constitute a complete statement of, or a waiver of, any legal rights my clients may have now or in the future.

 

Thank you.

 

Endnotes (Matters The Commission Should Also Read And Consider)

[i] SDCL § 11-2-10.1 (2018) (South Dakota’s temporary zoning statute).

[ii] SDLC § 11-2-18 (2018).

[iii] SDLC § 11-2-19 (2018).

[iv] See Wedel v. Beadle County Com’n, 2016 S.D. 59 (S.D. 2016) (citation omitted).

[v] See Robert Bryce, Wind power is an attack on rural America, Los Angeles Times (Feb. 27, 2017) (“Rural residents are objecting to wind …. They don’t want to live next door to industrial-scale wind farms. They don’t want to see the red-blinking lights …, all night, every night for the rest of their lives. Nor do they want to be subjected to the audible and inaudible noise ….”), at https://www.latimes.com/opinion/op-ed/la-oe-bryce-backlash-against-wind-energy-20170227-story.html.

 

[vi] See David Ganje, Wind turbines ordinances revisited, Capital Journal (Nov. 8, 2017) (discussing South Dakota’s Lincoln and Walworth County setbacks, which exceed one mile) (“A[n] expert in property valuations … used a [] two-mile minimum as a benchmark for turbine setbacks.”), at https://www.capjournal.com/opinions/columnist/wind-turbine-ordinances-revisited/article.html.

[vii] Trempealeau County, Wisc. (1-mile setback from all homes and workplaces); Mason County, Ky. (1-mile setbacks at property line, shadow flicker limitations, decommissioning); Sumner, Me. (1-mile setback from property line, low-frequency noise/shadow flicker limitations, decommissioning). Each county name is a link to the actual ordinance.

[viii] See Tony Fleming, Wind Ordinance Debate: The 1,000-foot Set-Back Standard (Are environmentalists underregulating themselves?), Master Resource (Jan. 23, 2012), https://www.masterresource.org/wind-offset-distance/wind-ordinance-offset-debate/.

[ix] See Paul W. Wilke, Road Use Agreements to Mitigate Impacts of Energy Developments on Low Volume Roads, Applied Research Ass’n (2017) (On average, 43 truckloads are needed to build 1 wind tower foundation, 35 truckloads for the main crane of each wind tower, 25 truckloads for support cranes for each wind tower, and 313 truckloads per mile of road built), at https://www.countyengineers.org/assets/Presentations/2017/wed 2pmfinan wilke.pdf.

[x] Campbell County Ordinance #2019-1 § 5.22.03 (2018).

[xi] Codington County Amended Ordinance # 68 § 5.22.03 (2018), at https://www.codington.org/wp-content/uploads/2018/04/Ordinance-68-Wind-Energy-Systems-1.pdf.

[xii] Id. at § 5.22.03.1.f.ii. (Requiring road agreement approved by county); id. at § 5.22.03.15.ii.b., d., g., h., i. (Amending mitigation and CUP application requirements to address problems with haul roads).

[xiii] See J.T. Fey, County working on road haul agreement with Apex Energy, Watertown Public Opinion (Aug. 8, 2018) (The commissioners had dealt with another road haul issue before.”) J.T. Fey, Concerned citizen raises question about road damage, Watertown Public Opinion (July 27, 2018) (“[D]amage to a Codington County road has one citizen concerned about … construction on wind towers ….”).

[xiv] See Joshua Conaway, Be Aggressive with Wind Energy: Blow Away the Decommissioning Fears, 2 Oil & Gas, Nat. Resources & Energy J.621 (2017) (“Without proper regulations, a strong likelihood exists that these turbines will remain in place long after their useful lives have expired.”), at http://digitalcommons.law.ou.edu/onej/vol2/iss6/3.

[xv] See David Ganje, Wind Energy Development Memo // Decommissioning (2018), at http://www.windaction.org/ganje-memo-on-decommissioning.

[xvi] See Hayes Stripling, Wind Energy’s Dirty Word: Decommissioning, 95 Tex. L. Rev. 123 (Nov. 2016) (There is no easy answer for when a surety bond should be required. But “[w]hat is clear is that …  security [should] be in place on or before a project’s payout date.”), at http://texaslawreview.org/stripling.

[xvii] Id. (Avg. of 10 WES decommissioning cost $129,000 per turbine, ranging from $27,000 to over $650,000 per turbine.); see also Conaway supra note XIV (“These costs, if allocated on a per-turbine basis, are $25,899 and $92,463 respectively per turbine, solely for road removal.”) (emphasis added).

[xviii] Lisa Linowes, The Incompatibility of Wind and Crop ‘Farming’, Master Resource (July 1, 2013) (“[F]armers tell us that the ground is never the same…. The [once] fertile soil around the towers is … compacted resulting in lower crop yields. Since compaction is assumed to be a construction-related impact, crop-loss payments are often time-limited …. However, … the massive cranes [are] brought back … throughout the life of the project. And it’s not limited to existing roads or turbine pads….”), https://www.masterresource.org/linowes-lisa/incompatibility-wind-crop-farming/.

The Problem With South Dakota Boards

Posted on: November 9th, 2018
by David Ganje

‘Changes in regulations must await a demonstrated need.’ This is more than a concept but is the actual practice and the mantra of most governments. In keeping with the principles of government restraint, adopting new regulations must await a serious event which only then calls for new regulations.  A preferred ideology is to respond to events after they have happened.  Otherwise, it is argued that premature action is experimentation and not the job of government.

 Should a state board or a commission appointed by the governor be more than a policeman or a Justice of the Peace?  That is the question. Examples are necessary.  One must look at what power or authority is given to a board. In this instance I will use two boards and discuss their significance, and present to the reader the legal power granted to them.  The state Water Management Board and the Board of Minerals and Environment each consist of citizen members appointed by the Governor, not all of whom may be from the same political party.  So the beauty is that these appointees are not lobbyists, government employees or hired guns.

 Both named boards have an advisory function giving the public, the legislature and the governor advice, gathering information, and making recommendations.  In addition the boards have a rulemaking and permitting function.  This is extraordinary in government.  A group of citizens is in effect managing environmental and water policy.

 How extraordinary this is was borne out by my recent experience.  I was privileged to just complete the teaching of a seminar on natural resources and environmental law to Czech law students at a university in the Czech Republic.  In the seminar I compared and contrasted South Dakota’s water and natural resources law with that of the Czech Republic.  In South Dakota authority for water use permits and mining permits as well as overseeing permit holders and permit holder problems lies with the two citizen boards I mentioned.  That’s a lot of power in the hands of appointed citizens of the state, not in the hands of government employees.  Some of the seminar students had a hard time appreciating this difference in the law.  Their struggle has to do with the fact that all natural resource and environmental laws in their country are controlled by government agencies and its employees — not by boards or commissions.

 Is the preferred ideology of responding to events after they have happened the better way to preserve property, prevent loss and prevent harm to the environment?  No.  I have over the last couple of years provided numerous examples of historical events causing financial or other harm for which state government has provided no adequate response, and have suggested rules which will prevent future harm.  These examples can be found in the archives of this newspaper and in the various articles and blogs on my website. The subject of several of my suggestions is the lack of preparedness for accidents, spills or so-called disasters. In almost each instance the suggested points have not been addressed.  Alas these boards have the full authority to anticipate such problems and legal authority to act in advance; that is they have the power to make fair, open and public rules.  The rulemaking process itself allows for public input.  Secret rule making is not permitted.  And the boards are not burdened with lawmaking pressures of lobbyists hanging on their every word, interest groups petitioning them with incessant ‘concerns’ and other normal challenges of publicly elected politicians.  Boards are blessed with the legal authority to be agents of change in the fast evolving world of environmental and natural resource management.  They need to be more than just policemen or Justices of the Peace.  

Boards are not using their advisory and rulemaking authority to their advantage and to the advantage of the state.  Boards are given the legal framework to propose rulemaking but prefer to manage the status quo.  This exceptional citizen rulemaking power does not exist in other governments and in other countries.  This is indeed an opportunity squandered.

 

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law