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Naked in the Wind

Posted on: December 17th, 2021
by David Ganje

I continue to be in a state of puzzlement. My dad would sometimes tell me I was young and naïve. I am now considerably older and by the looks of it still naïve. I always thought South Dakotans said, ‘local control is better.’ This as I was taught is a good maxim for government.

A maxim is a moral rule, principle, or a particular behavior pattern of mankind. I have considered, naively, that local government control is desirable.

Local government control applies to wind farm ordinances. County ordinances covering the development and operation of wind farms are not exclusive of course; the state has adopted a series of statutes and rules administered by the PUC and to an extent the SD GF&P which also apply. Yet the more local government participates in the process the better the representation of residents. Only some counties in South Dakota have adopted local wind farm ordinances also known also as wind energy ordinances.

Wind energy projects create siting issues. The physical placement and configuration of wind turbines, roads, fences, collection lines and the like must be considered. Relevant questions include a project’s impact on existing land use, on a neighbor’s land use, and the environment. These are local issues.

A few months ago on behalf of a landowner client I submitted an extensive letter to a county commission in the state advocating the adoption of a wind energy ordinance. The county had none. I have in the past been accused of being a tree hugger. This criticism is an ad hominem distraction. Neither I nor my client are opposed to wind energy development. I am a third-generation businessman, and in my work have represented natural resource developers.

In the letter to the county, I discussed several things to consider including turbine setbacks, the development application and approval process, decommissioning, infrastructure, and safety. In some counties unfamiliarity with wind technology has kept county leaders from addressing wind development. Contrariwise some counties, like Lincoln County, have adopted significant restrictions on wind energy development.

Creating a county oversight and permitting process, that is – writing a basic wind farm ordinance setting down “rules of the road” gives wind energy projects an affordable, streamlined, and accountable system for legal permitting. On the other hand, open range (meaning no requirements) in which a county has no guidelines is an unsuitable system for a county that has adopted a comprehensive plan.

In Ag and ranch country there are risks in doing nothing. Please consider the matter of abandoned wells and orphaned non-tax-paying gas wells in Harding County. This problem challenges Harding County leaders on questions of how to re-establish a tax base and what party is to clean up all the unused infrastructure.

In a 2013 article in the South Dakota Law Review the author discussed property rights and the preservation of local control in the context of state surface drainage practices. The author said that keeping local oversight is important to county commissions because each county wants to know where related activity occurs within its boundaries; and further wrote that many citizens appreciate local ordinances because these ordinances ensure that a project applicant would, 1. notify the county and the affected landowners and 2. that a public hearing would be scheduled before a proposed project begins. The author’s comments apply equally to a wind energy ordinance. Wind energy ordinances establish reasonable parameters on local planning issues and make the project development process and its operations clearer to residents and the public.

Published in the Rapid City Journal, Dec 3, 2021

Wind Energy Brief

Posted on: July 12th, 2019
by David Ganje

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF SOUTH DAKOTA

_____________________________________________________________________________

EL 19-003

IN THE MATTER OF THE

APPLICATION BY CROWN

RIDGE WIND, LLC FOR A INTERVENORS’

PERMIT OF A WIND ENERGY POST-HEARING BRIEF

FACILITY IN GRANT AND

CODINGTON COUNTIES

 STATEMENT OF THE CASE AND INTRODUCTION

On January 30, 2019, the South Dakota Public Utilities Commission (Commission) received an Application for a Facility Permit for a wind energy facility (Application) from Crowned Ridge Wind, LLC (Crowned Ridge or Applicant) to construct a wind energy conversion facility to be located in Grant County and Codington County, South Dakota (Project or proposed project). The Project would be situated on approximately 53,186-acres in the townships of Waverly, Rauville, Leola, Germantown, Troy, Stockholm, Twin Brooks, and Mazeppa, South Dakota. The total installed capacity of the Project is claimed not exceed 300 megawatts (MW) of nameplate capacity. The proposed Project includes up to 130 wind turbine generators, access roads to turbines and associated facilities, underground 34.5-kilovolt (kV) electrical collector lines, underground fiber optic cable, a 34.5-kV to 345-kV collection substation, one permanent meteorological tower, and an operations and maintenance facility. On January 31, 2019, the Commission electronically transmitted notice of the filing and the intervention deadline of April 1, 2019, to interested persons and entities on the Commission’s PUC Weekly Filings electronic listserv. On February 6, 2019, the Commission issued a Notice of Application; Order for and Notice of Public Input Hearing; Notice of Opportunity to Apply for Party Status. On February 22, 2019, the Commission issued an Order Assessing Filing Fee; Order Authorizing Executive Director to Enter into a Consulting Contracts; Order Granting Party Status. On March 20, 2019, a public input hearing was held as scheduled. On March 21, 2019, the Commission issued an Order Granting Party Status. On March 25, 2019, Patrick Lynch filed an Application for Party Status. On March 26, 2019, Commission staff filed a Motion for Procedural Schedule. On March 27, 2019, Crowned Ridge filed its Responses to the Motion for Procedural Schedule. On March 28, 2019, lntervenors filed a Response to Crowned Ridge’s Response to the Motion for Procedural Schedule. On April 5, 2019, the Commission issued an Order Granting Party Status; Order Establishing Procedural Schedule. On April 25, 2019, lntervenors filed a Motion to Deny and Dismiss. On April 30, 2019, the Commission issued an Order For and Notice of Motion Hearing on Less Than 10 Days’ Notice. On April 30, 2019, Commission staff and Crowned Ridge each filed a Response to Motion to Deny and Dismiss. On May 6, 2019, lntervenors filed a Reply Brief in Support of Motion to Deny and Dismiss. On May 10, 2019, the Commission issued an Order Denying Motion to Deny and Dismiss; Order to Amend Application. On May 10, 2019, the Commission also issued an Order for and Notice of Evidentiary Hearing. On May 17, 2019, Intervenors filed a Second Motion to Deny and Dismiss. On May 23, 2019, Commission staff filed a Request for Exception to Procedural Schedule and Crowned Ridge filed its Response to lntervenors Second Motion to Deny and Dismiss and, as a part of its response, Crowned Ridge requested a Motion to Strike. On May 28, 2019, Intervenors filed a Reply Brief and Motion to Take Judicial Notice. On June 12, 2019, the Commission issued an Order Granting Request for Exception to Procedural Schedule; Order Denying Motion to Take Judicial Notice; Order Denying Motion to Strike. The Commission has not ruled on the Second Motion to Deny and Dismiss. The Commission has jurisdiction over this matter pursuant to SDCL Chapters 1-26 and 49- 41 B, and ARSD Chapter 20: 10:22. The evidentiary hearing was held, beginning on June 11, 2019, and ending on June 12, 2019, with one Staff witness heard prior to the scheduled evidentiary hearing. At the conclusion of the evidentiary hearing, a briefing schedule and decision date was set by the Commission. Intervenors, through undersigned counsel, submit this Post-Hearing Brief. Applicant is seeking a permit from the Commission to build a wind farm in Grant and Codington Counties South Dakota. As the permit applicant, Applicant shoulders the burden of proof to establish its proposed project satisfies the provisions of SDCL 49-41B-22. Intervenors do not have the burden of proof to show the proposed project does not satisfy SDCL 49-41B-22. If there remains a question as to whether the proposed project complies with SDCL 49-4 lB-22, the permit application must be denied. As shown below, Applicant has not satisfied its burden. Therefore, Intervenors respectfully request the Commission deny Applicant’s permit Application. Citations to facts contained in the record are included in this Post-Hearing Brief and in the Intervenors’ Proposed Findings of Fact and Conclusions of Law which are incorporated into this Brief.

ARGUMENT

2. The Legislature intended for an extensive and complete review of a wind farm permit application by the Commission. The legislature would not have done so if it did not expect its statutory requirements to be a high bar. In this proceeding, as of the conclusion of the evidentiary hearing, the Application is still, at best, materially incomplete. It is also accurate to say the Application at completion of the evidentiary hearing is unavailable as an understandable proposed project. See for example the findings set forth in Intervenors’ Proposed Findings of Fact and Conclusions of Law on the issue of due process.

3. Intervenors’ Proposed Findings of Fact and Conclusions of Law are filed with this Brief as Exhibit A and are incorporated into this Post-Hearing Brief by reference. The insufficiency of Applicant’s evidence and facts, the unaddressed relevant legal issues in this proceeding, as well as the failure of the Applicant to satisfy legal requirements following applicable siting law and rules under the mandate of SDCL 49-41B-22(1) are presented in detail as findings and conclusions in Exhibit A.

4. Applicant’s statutory burden of proof under SDCL 49-41B-22 has not been met in this proceeding. Additionally, ARSD 20:10:01:15.01 is one of the Commission’s Rules of Practice, and it also applies to this matter. The rule requires: In any contested case proceeding, the complainant, counterclaimant, applicant, or petitioner has the burden of going forward with presentation of evidence unless otherwise ordered by the commission. The complainant, counterclaimant, applicant, or petitioner has the burden of proof as to factual allegations which form the basis of the complaint, counterclaim, application, or petition. ARSD 20:10:01:15.01 Applicant’s evidence supporting its regulatory compliance obligations are matters within the possession of the Applicant. The burden to produce evidence is on the Applicant. Davis v. State, 2011 S.D. 51, 804 N.W.2d 618, 628 (S.D. 2011); Eite v. Rapid City Area School Dist. 51-4, 739 N.W.2d 264 (S.D. 2007); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008); Dubner v City and County of San Francisco, 266 F3d 959, 965 (9th Cir 2001) This burden remains upon Applicant regarding all wind energy siting statutes and concerning all wind energy siting rules throughout every stage of the proceeding. Gordon v. St. Mary’s Healthcare Ctr., 617 N.W.2d 151 The facts and issues regarding the denial of due process of the law raised by Intervenors also reflect Applicant’s failure to meet its statutory and administrative burden of proof in this proceeding. Wind farm siting laws and the related administrative rules have disturbed Applicant’s efforts to obtain a permit. The proposed Application, at the completion of the evidentiary hearing, does not meet Applicant’s burden of proof under which this Commission might have approved a permit — even with proposed conditions. In this matter the Applicant and Staff submitted proposed permit conditions. As the record reflects, Intervenors were not invited to, and did not participate in, the writing or negotiation surrounding the creation of the proposed conditions. Under these circumstances the Intervenors do not accept the terms of the proposed conditions. Applicant must prove to the Commission compliance with all the elements of South Dakota’s siting statutes and each of the applicable siting rules by a greater convincing force of the evidence. Applicant’s burden of proof is that the “proposed facility will comply with all applicable laws and rules.” That’s not a maybe. That’s not a might. The Applicant is not allowed to get kind of close to complying with applicable laws and rules. An applicant must comply with all applicable laws and rules. Applicant has not done this.

5. In this proceeding are the Applicant’s requested 45 db(A) and 50 db(A) sound levels for the proposed project standards which the Commission should approve? No. Are Applicant’s requested 45 db(A) and 50 db(A) sound levels supported by the testimony and writings of Staff witness Hessler and supported by the testimony and writings of Applicant’s principle health witness Ollson? No. Applicant must prove to the Commission compliance with all the elements of South Dakota’s siting statutes and each of the applicable siting rules by a greater convincing force of the evidence. Applicant has failed to meet that burden on the issue of health and welfare. SDCL 49-41B-22(3) Staff witness Hessler wrote in a 2011 professional article that 40 db(A) is recommended. Staff witness Hessler testified in a prior 2018 South Dakota PUC hearing that 40 db(A) should be the design goal. Staff Witness Hessler advised the Minnesota Public Service Commission in a 2011 report that any new project should maintain a mean sound level of 40 db(A) or less. Staff witness Hessler advised the Wisconsin Public Service Commission in a 2012 report that a 39.5 db(A) or less should be used for all non-participating residences. Staff witness Hessler testified in the current proceeding that for many years he recommended as the ideal performance level of 40 db(A). Staff witness Hessler testified also in the present preceding that he recommended 40 db(A) as an ideal design goal. Staff witness Hessler acknowledged as his professional opinion that a 40 db(A) for every non participant was recommended. Staff witness Hessler reported in his pre-filed testimony in this proceeding that anytime sound levels are higher than about 40 db(A) he anticipates complaints with the number of complaints and the severity of complaints increasing exponentially as sound levels approach 50 db(A). Staff witness Hessler told the Commission that 40 db(A) sound level maximums would be better for the public than 42 db(A). Staff witness Hessler testified that 40 db(A) would be acceptable to the welfare of the public as a permit condition. Staff witness Hessler testified in this proceeding that he agreed with a professional article found at Exhibit I – 8 reporting that the level of 40 db(A) is a design goal intended to protect the public. Staff witness Hessler also agreed with a 2017 professional article at Exhibit I-4 indicating that wind turbine farms designed to a level of 40 db(A) or lower for non-participating receptors have an acceptable community response. Staff witness Hessler acknowledged that a report he gave to the Wisconsin Public Service Commission recommended a 40 db(A) level for non-participating residences. Applicant’s principle health Witness Christopher Ollson agreed that a 2011 World Health Organization noise guideline of 40 db(A) is a health-based limit value. Applicant witness Ollson acknowledged he wrote in a 2014 professional article recommending that preference should be given to sound emissions of approximately 40 db(A) for non-participating receptors and that this level was the same as the World Health Organization night noise guideline. Applicant’s witness Ollson wrote in a 2014 presentation that noise from wind turbines can be annoying to some and associated with sleep disturbance especially when found at levels greater than 40 db(A). Applicant’s witness Ollson wrote in a 2014 presentation that preference should be given to sound emissions of 40 db(A) or less for non-participating individuals. Ollson further testified that the limit of 40 db(A) or less for non-participating was the same guideline as the World Health Organization guideline. Applicant’s witness Ollson admitted that he had previously testified in a 2014 Canadian wind farm proceeding that 40 db(A) was reasonable and sufficient to protect against human effects. Ollson also testified he had recommended in a prior application proceeding that best practices include a preference for sound emissions of 40 db(A) or less for non-participating receptors. In his testimony in this proceeding Applicant witness Ollson acknowledged that he expressed a preference to be given to sound dimensions of 40 db(A) or less for non-participating receptors in a 2014 professional article he had written. When asked in this proceeding, Ollson stated that he had not changed any of his writings or his opinion on the opinion recommending sound emissions of 40 db(A) or less. Intervenor’s Proposed Findings of Fact and Conclusions of Law cite to and provide reference to the record on the above statements for each of the two witnesses. The preceding is substantial evidence, by Applicant and Staff witnesses, against approving Applicant’s requested sound level standards in this proceeding. Considering this evidence, Applicant has not presented its case for sound standards with a greater convincing force of the evidence. The Commission cannot and should not approve the Applicant’s requested sound standards for the proposed project.

When one considers the essential information needed to obtain permit approval under wind energy siting law, one appreciates the law’s purpose in requiring that an applicant place before all interested parties a competent and full disclosure as well as a public explanation of how the proposed project complies with applicable siting law and rules and how the project would affect the health, safety and welfare of inhabitants. Applicant has not met its burden of proof under the administrative rules and under wind energy siting statutes. By way of illustration, Applicant states that it may agree to move 7 turbines because of the opinion of Staff witness Hessler who recommended to the Commission that 16 turbine locations should be moved. Staff witness Hessler testified, “The 16 units that I believe are unduly and unnecessarily affecting non-participating residences are circled in black. . .” (citation for the record and quotations in this Post-Hearing Brief are found in Intervenors’ Proposed Findings of Fact and Conclusions of law) The recommendation Staff witness Hessler expressed to the Commission regarding the welfare of inhabitants is not reflected in the proposed minimal acts of Applicant. Applicant suggested it may move seven of the recommended 16 turbines. “Q. You’re not going to move 16 of them? A. We have agreed to moving seven turbine locations. Q. You haven’t agreed to move 16? A. That’s correct. We agreed to move 7.” Applicant’s position is far from a commitment to do what is recommended. And further, Applicant does not represent to the Commission that the 7 turbine sites which it may move are to be withdrawn sites or are to be terminated as project turbine location sites. Applicant will still maintain those 7 sites as a ‘back up.’ None of this ‘moving of 7 turbines’ complies with the Staff witness’ recommendations. Applicant is not taking adequate action to protect the health, safety and welfare of project inhabitants. The Applicant’s several witnesses in this proceeding do not show any dispute or criticism regarding the recommendations of Mr. Hessler that 16 turbines should be relocated. Applicant’s proposed action does not adequately protect non-participators. This effort to sway to the Commission is too little. Applicant is over-careful regarding its own interests at the expense of the project community, the inhabitants and non-participators. A proposed move of a minimal number of the turbine relocations contrary to the recommendation by Staff witness Hessler does not meet Applicant’s burden of proof regarding the health and welfare of the inhabitants pursuant to SDCL 49-41B-22(3).

7. The materially incomplete Application is shown by the lack of a full avian use survey report. Applicant’s purported avian study for the proposed project is found at Appendix E of the Application. The study ended in November of 2017. See page 58 of Appendix E. The avian use survey report fails to include a significant portion of the proposed project. The northeast area of the proposed project was not included in the report. This unsurveyed project area consists of 15,500 acres of land and 25 proposed turbine sites or alternate turbine sites. Applicant’s avian survey map, Exhibit A1-E p2, reveals the failure to survey this large northeastern area of the project. The map included with the survey is Applicant’s document filed in support of its assertion that Applicant completed a survey of the proposed project area. The northeastern area of the project was acquired by the Applicant at the end of November 2017 but well over one year before the Applicant formally filed the pending Application. Application Exhibit A1 p 88 “Cattle Ridge Wind Farm, LLC was acquired by the CRW on November 22, 2017 for inclusion with the Project.” Applicant did not do an avian use survey report on the northeast area of the proposed project. The fact that the Application contains no avian use study of the completed project area is confirmed by Applicant witness Sappington’s testimony. “Mr. Ganje Q. I would refer you to Exhibit A1-E…” “Mr. Ganje Q. So then no avian study report was done for that portion of the project, was it? Sarah Sappington A. No Avian Use Survey.” The dashed lines on A1-E show the limits of the survey area. “Q. I would ask you please to refer to A1-B page 80. And is the — referring now to page 80 of the exhibit, please. Is page 80 the colored area, the area of interest that was studied by your company?” Sarah Sappington “A. This was studied as of July 2017. Q. Yes. And does that study area include the northeastern portion of the proposed project that I referred to you in a previous question and showed you on a previous map? A. Are you referring to that northeast portion? Q. That is correct. A. No. This map does not have it.” The purple area shown on A1-B does not include the northeast area of the proposed project. And, Figure 1 of the “study area” on page 2 of the Avian Use Survey Report is clear evidence the Application is materially incomplete. See Appendix E to the Application. Applicant cannot be granted a permit by the Commission.

8. In this proceeding the problem of denial of the Intervenors’ due process rights is set forth with citations in the findings and conclusions found at Exhibit A to this Brief. The lack of due process issue is stark. The issue warrants a review in this Brief. The right to be informed of, to access, to know and to challenge an Application is not available to Intervenors where material information has not been timely placed on the record – even at the end of the final evidentiary hearing. Applicant has not implemented a fair and adequate procedure under which Intervenors could understand the facts necessary for the Commission to reach a decision. Applicant has not followed a fair and adequate procedure necessary for the Commission to reach a decision on the impacts of the proposed project. Since the day of filing the Application, Interveners have been deprived of adequate information from which to understand, research and challenge the Application under its ever-evolving and materially-changed proposed project. Up to the last day of the hearing substantial and material proposed project changes were submitted to the Commission. Adequate notice and due process of law do not permit an applicant in such a complicated public siting process to change material facts and technical representations on the final day and at the final hour of the submission of evidence. Further, the Application is still incomplete in multiple, material respects, and should be denied by the Commission.

9. Instances of denial of due process.

9a.) At the close of the evidentiary hearing, Applicant filed two documents Exhibits: A67 and A68, as so-called updated shadow flicker tables. The shadow flicker tables list 70 nonparticipating and 61 participating receptors, which are homes, with 4 participants listed as pending. The table is missing 56 of 59 of nonparticipators receptors in Stockholm and Waverly. Exhibit A1 page 75 And at this late date Intervenors still do not know the participators. Applicant fails to provide information on who is participating, who is not, and the effects on these receptors. Of the 131 receptors listed on the table, more than half are non-participators and this table does not include the 56 non-participating receptors in the two towns inside the proposed project. This brings the total of the non-participators inside the project boundary at 129 vs 61 participating. In the last 2 days of the evidentiary hearing Applicant submitted exhibits A57, A67 and A68. The exhibits are presented as updated sound and flicker modeling for the proposed project. Except for modeling four receptors in Waverly and one in or near Stockholm, Applicant failed to consider, model or include receptors and residences in the towns of Stockholm and Waverly. While the proposed project offers setbacks away from the towns of Waverly and Stockholm, setbacks do not address the issue of the effects of sound and flicker on the residences of Waverly and Stockholm. The Applicant’s modeling buffer zone, as well as the proposed project site, includes the towns of Waverly and Stockholm, but Applicant did not consider, model or include all the receptors and residences in the two towns. The large number of town residences within the proposed project is identified in the Application. See Application page 75 Applicant did not do complete sound and flicker modeling for Waverly and Stockholm. Applicant’s evidence is void of material and necessary information concerning the consequences of sound and flicker on the residents of Stockholm and Waverly. The lack of relevant and material evidence makes it impossible for Intervenors to evaluate a complete Application which covers 53,186 acres of South Dakota.

9b.) Applicant’s astonishing last-minute presentation of Application evidence included Exhibit A55 –Proposed Turbine Drops and Moves. This exhibit was presented to the Intervenors and the Commission on the first day of the evidentiary hearing June 11^th, 2019. Revealing for the first time in a 6 month application process several proposed turbine drops and several proposed turbine moves. This last-minute disclosure did not provide adequate and timely notice to Intervenors on a substantive and material aspect of the Application. Applicant’s Exhibit A55 represents that turbines will be ‘dropped’ from the project. However the testimony of Applicant witness Wilhelm at the evidentiary hearing contradicts this proposition. Mr. Wilhelm testified during the evidentiary hearing that, 1. The turbines will not be dropped but will actually be reserved for possible later use, and that, 2. The relocation of the turbines that Applicant offered to move is not to be disclosed. Applicant provided no coordinates for the turbines to be relocated. Further, the so-called dropped turbines proposed do not address witness Hessler’s recommended 16 turbine relocations. The representations of Applicant regarding the so-called dropped turbines, and Applicant’s suggested turbines to be moved, found in Exhibit A55 are misleading at best. Turbines identified as CRII – 127 and CRII – 129 are included among the so-called dropped turbines. These turbines are not turbines sites for the proposed project. These turbines sites are part of a different wind farm project altogether. And, three turbine sites to be ‘moved’ (CR II Alt 3, CRII 126, CRII 133) are not a part of the proposed project. The three turbines are a part of a different wind farm project altogether. Further, and just as material, Applicant’s proposal found in Exhibit A55 does not move ten of the turbines sites recommended to the Commission by Staff witness Mr. Hessler for relocation. See Exhibit S1a Applicant provides no designated placement sites for the ‘moves’ it suggests it would make. The map produced by Applicant at A55 and the accompanying proposal is an attempt by Applicant to offer something of no relevant value to the legitimacy of the proposed Application in exchange for approval of the proposed project by the Commission, the Intervenors and the affected property owners. Applicant’s proposal should be labeled a dance of dissemblance. The lack of relevant and material information makes it impossible for Intervenors to timely evaluate a completed Application which covers 53,186 acres of South Dakota.

9c.) Although it is a requirement of the permit process, the Applicant did not timely file documents needed to evaluate the Application and its impacts to the environment and citizens. Applicant represented from and after January 2019 that no turbines would be placed on grasslands or wetlands. Application page 79 Applicant’s representation is not true. On June 4, 2019 Intervenors learned through data request responses in Exhibit A45-3 the matter of missing USFWS easements. An Applicant may only place turbines on the upland portion of a federal wetlands easement parcel. The maps submitted by Applicant do not adequately reflect the location of wind turbines on parcels designated as federal wetlands parcels. In this proceeding a reasonable person cannot determine the location of turbines proposed to be located in the 7 wetland parcels. The lack of relevant and material information makes it impossible for Intervenors to evaluate a completed Application for a proposed project that covers 53,186 acres of South Dakota, without all the required information timely provided.

9d.) Applicant misled the parties concerning a claimed, completed Avian Study. The Applicant provided an incomplete Avian Study in which 15,500 acres were not included, although the written Application represents that all such matters are good to go. And Applicant did not provide biological studies and information concerning native grasslands and mammals. The lack of relevant and material information makes it impossible for Intervenors to evaluate a completed Application for a proposed project that covers 53,186 acres of South Dakota, without all the required information timely provided.

9e.) Intervenors’ Second Motion to Deny provides an illustration of the Applicant’s failure to timely disclose and failure to provide proper notice, adequate information and failure to provide Intervenors due process. In paragraph 14 of the Patrick Lynch affidavit in support of the motion, Applicant’s misrepresentation to the record, to the Commission and to Intervenors is recited. Patrick Lynch Affidavit filed 5/17/2019 The Lynch Affidavit reveals Applicant’s failure to disclose a material fact. Until Applicant was obliged to respond to the Second Motion, Applicant withheld the fact that it did not have legal access to 25 proposed turbine locations. In its motion response Applicant did not deny Applicant’s lack of an easement, even though Applicant had represented in its filings from January 2019 until the Second Motion was filed (the end of May 2019) that it had legal access to the 25 proposed turbines. The false representation was made for 4 months of the 6 month application process allowed by law. Applicant knew the easement did not exist. And in response to the Second Motion Applicant further admitted there were six expired land agreements; while in a separate disclosure in June 2019 Applicant admitted that there were seven material land agreements necessary for the project. Without knowledge of the location of turbines, the location of easements and collection lines it is and was impossible for Intervenors to understand, research and timely challenge a completed Application.

10. Intervenors incorporate by reference into this Brief: Intervenors’ filed Brief in support of their First Motion to Deny and Dismiss, Intervenors’ filed Reply Brief in support of their First Motion to Deny and Dismiss, Intervenors’ filed Brief in support of their Second Motion to Deny and Dismiss, and Intervenors’ filed Reply Brief in support of their Second Motion to Deny and Dismiss. Intervenors also incorporate by reference into this Brief Intervenors’ hearing Brief on Intervenors’ Motion to Strike testimony of witness Haley.

CONCLUSION

11. The Application does not meet the criteria required by South Dakota Codified Laws. The construction of the project does not meet the requirements of South Dakota Codified Law 49-41B. Applicant has not demonstrated that the proposed facility will comply with all applicable laws and rules. Applicant has not demonstrated that the facility will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or expected inhabitants in the siting area. Applicant has not demonstrated that the facility will not substantially impair the health, safety or welfare of the inhabitants.

12. Even if reviewed in the best light (which is not the legal standard for assuring a party due process of the law, and does not comply with Applicant’s required burden of proof) the pending Application is murky, muddled, incomplete and with material information unknown. The Commission and the Intervenors should not have this many unanswered questions, and the Applicant unfulfilled legal obligations, all at this stage of the proceeding. Because there are so many and because of the significance of the unanswered questions as well as an incomplete Application, the Commission should deny the permit application. Further, based upon the arguments described in this Post-Hearing Brief and based upon the findings and law described in Intervenors’ Proposed Findings of Fact and Conclusions of Law the Application should be denied. In addition, the application process in this proceeding has denied and infringed upon Intervenors’ due process rights including their opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Applicant has failed to meet its burden of proof under SDCL 49-41B-22 and ARSD 20:10:01:15.01. The Application should be denied.

Dated this _____ day of __________, 2019

/s/ David L Ganje

Ganje Law Offices

17220 N Boswell Blvd Suite 130L, Sun City, AZ 85373

Web: lexenergy.net

Phone 605 385 0330

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

Memo to Commission on Wind Farms

Posted on: September 8th, 2018
by David Ganje

To: Campbell County Commissioners

From: David L Ganje attorney // 605 385 0330

davidganje@ganjelaw.com

Re: Campbell County’s prospective comprehensive plan, temporary zoning ordinance and proposed Campbell County Wind Farm Phase 2

Date: August 15^th 2018

By way of introduction, I represent Campbell County landowners Larry and Bea Odde and Donna Rossow.

Wind farms are a significant structural and economic part of a county. Each county naturally has the right to encourage the development of privately operated wind farms. A county, by virtue of South Dakota law, may also have the obligation of watchful care over wind farms within its borders. My clients are certainly not opposed to wind energy projects. My clients are however concerned about property rights and protections, wind energy ordinances, and Campbell County’s consideration of infrastructure projects.
Infrastructure is described as physical improvements in a county such as road systems, water systems, bridges and some utilities. This includes physical structures that are essential to a community. Infrastructure has environmental, social and economic benefits as well as costs to a county. One does not usually think of private business as owning and operating infrastructure, yet it does. Privately owned infrastructure includes wind farms and electrical utilities. A wind farm is private infrastructure. Infrastructure does not consist of a small business enterprise which would only affect a piece of property off in a corner somewhere. Due to infrastructure’s broader effect on a county, it is subject to more than just private property rights. A wind farm is private enterprise with public consequences. Commissioners have the right, and a legal duty, to oversee the planning, development and maintenance of certain infrastructure within a county.
The state of North Dakota regulates the siting of a wind energy facility greater than 500 kW. That is not the case in South Dakota. The South Dakota Public Utilities Commission (PUC) does not regulate the legal siting terms and conditions of a wind energy facility producing under 100 MW of electricity. In SD a “wind energy facility” is defined as a system designed for or capable of generation of 100 MW or more of electricity. A wind energy facility is the same thing as a wind farm. The county commission will take notice that neither the existing Campbell County Wind Farm Phase 1, nor the proposed new Phase 2 equal 100 MW of electrical capacity generation per the developer’s information. Phase 1 and Phase 2 are both outside of the PUC’s siting authority. This leaves only one lead agency to oversee and manage the project siting process for a wind farm in Campbell County: the Campbell County Commission.
Wind energy projects, also known as wind farms, create a number of siting issues. The physical placement and configuration of wind turbines, roads, fences, collection lines and the like must be considered. Relevant questions include a project’s impact on existing land use, a neighbor’s land use, and the environment. For example, authorizing a wind farm in close proximity to a residence may create a claim for inverse condemnation or a regulatory taking of private property. A regulatory taking, that is, a taking by government rulemaking, may occur if a land-use regulation “goes too far.” The commission is challenged to create a balance between private property rights and the government’s power to regulate in the public interest.
Campbell County is naked. The county has no comprehensive plan and has no zoning ordinances. A comprehensive general plan lays out the physical development of the county. In South Dakota a comprehensive plan is required for the purpose of protecting the development of the county; to protect the county’s tax base; for planning land use that will make adequate provisions of transportation, roads, water supply, drainage, sanitation, education, recreation, or other public requirements; to reduce governmental expenditure; and to conserve and develop natural resources. Zoning ordinances are adjunct to, and must be in accordance with, a county’s comprehensive plan. Without a comprehensive plan zoning ordinances cannot be adopted. The only exception to this restriction is the passage of a so-called emergency temporary ordinance.
The Phase 1 Campbell County wind farm became a public matter in approximately 2010. At that time the county did not have a comprehensive plan, a wind energy ordinance or a procedure for obtaining special use permits. The Phase 1 wind farm became operational in December of 2015. At that time the county did not create a county comprehensive plan, wind energy ordinance or a procedure for obtaining special use permits. A new proposed Campbell County wind farm referred to as Phase 2 has been proposed since approximately March of this year. Yet, at this time the county still does not have a comprehensive plan, a wind energy ordinance or a procedure for obtaining special use permits. The county commission in July of this year hired a consulting agency to help write a temporary ordinance or comprehensive plan. It is of concern that Campbell County with its natural and physical features does not have wind energy regulations on the books.
My clients may have believed that Consolidated Edison Development, Inc. operates Phase 1. Department of Revenue papers received by the County Auditor in April of 2018 indicate that Campbell County Wind LLC is the entity paying taxes on Phase 1. A company that owns or holds property under a lease and who operates the same for the purpose of furnishing electricity is the party that pays taxes. A November 2015 federal filing by Campbell County Wind Farm, LLC reports that Campbell County Wind Farm, LLC is a Delaware limited liability company and that it “will own and operate” a 98 MW wind energy project located in Campbell County, South Dakota.
One South Dakota official was recently quoted as saying that wind energy development in the state is a “gold rush.” I wonder whether that state official understands the connotation of a gold rush. A gold rush creates huge challenges and can leave a government with a bucketful of problems. In a gold rush there are often no established rules or laws in the area and no established infrastructure to deal with the influx of activity. A comprehensive plan as well as zoning ordinances, if written fairly, create good rules of the road. A gold rush is like a community with no road signs, no speed limits and no traffic rules. Thinking of zoning ordinances as writing a traffic code for the county makes sense. A plan and ordinances can be written to protect people and property, and to keep things moving smoothly. A plan and ordinances should establish county oversight, safety, uniformity and a road map which wind farm operators can read and follow.
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. Letting another party write your local laws may be somewhat akin to letting a stranger use your credit card. Please consider that lawyers as a group are said to be the second oldest profession. But now that I think about it perhaps consultants as a group are really the second oldest profession– not lawyers. The commission will of course be the government body taking final ownership of the local zoning and planning law and its effects on the county.
When poor wind farm government oversight is in place, real operational consequences arise. In a workshop a few years ago a speaker at the Michigan Association of Planning discussed problems a wind farm created in Altamont Pass California. Apparently the older technology wind turbines caused a great number of bird deaths. The turbines were shut down in 2015. I do not here suggest or imply that this would be the case with Campbell County Wind Farm Phase 1 or Phase 2. Rather I provide the speaker’s comments on possible wind farm oversight issues. The presentation indicated that there was no environmental analysis before turbines were first installed; that there was a fragmented regulatory scheme letting the government avoid responsibility for solving the problem; and that the industry avoided taking responsibility and did not address the Altamont problem proactively.
South Dakota has no state environmental regulations on the siting of wind turbines. And, except for language in projects which may be under the joint jurisdiction of the PUC and local governments, wind power siting and permitting processes varies by county. Suggested guidelines are provided in a jointly issued statement by the state Game, Fish and Parks and the state Bat Working Group Organization. The following issues should be considered in a permit application: 1) Land Use 2) Natural and Biological Resources 3) Noise 4) Visual Resources 5) Public Interaction 6) Soil Erosion and/or Water Quality 7) Health and Safety 8) Cultural, Archaeological, and Paleontological Resources 9) Socioeconomic, Public Service, and Infrastructure 10) Solid and Hazardous Wastes 11) Air Quality and Climate.
Local laws are best tailored for each county. Lincoln County is different than Walworth County. And, yes, Walworth County may be different than Campbell County. The Walworth ordinance dealing with wind energy says that a decision to grant a wind permit is an administrative matter. It is not. The South Dakota Supreme Court in 2009 ruled that a conditional use permit application (a common process for wind farm approval) is quasi-judicial. Such ordinances are subject to a constitutional due process of the law review. This requires that a county be visibly fair to all parties affected by the permitting decision. Wind farm permits are exceptional permits because one might get approval in an area where regular zoning rules would not allow it. Due process in South Dakota requires a.) reasonable notice to all parties effected, and b.) an opportunity to be heard at a meaningful time and in a meaningful manner. The current ordinance fails on both counts.
The challenge for the county is to not create a chilling effect on new wind energy development and yet to protect the community, property owners, property values and the environment. One method occasionally used to write a new zoning ordinance is problematic. This problematic method is the adoption by a county of ordinance language based on that of another or several other sister counties. Adopting boilerplate central resource terms for suggested ordinance language is also not the best answer. In 2009 the PUC published and placed on the web a recommended general model wind farm siting ordinance. In an opinion piece on wind ordinances I previously critiqued part of the PUC recommended model language. Several months later the PUC withdrew the model ordinance.

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 effected by any proposed plan. Uncertainty among landowners and residents often leads to controversy. The particular language of an ordinance is always where the rubber meets the road. I look forward to looking at the proposed ordinance language from you and your consultants. Part of my job is to help my clients ask better questions. This memo is given for discussion purposes and is not intended as a complete assessment of any legal matters considered. If you would like to discuss the memo or have any questions please feel free to contact me. Thank you.

The problem with wind energy ordinances

Posted on: April 12th, 2018
by David Ganje

This opinion piece discusses wind turbine ordinances in South Dakota. I focus on local (county) ordinance writing and its hazards. I will not discuss other important related issues such as wind energy tax credits, the intricacy of wind easement agreements, state wind development policy or community and environmental risks. Those are left for another conversation. Like all natural resources wind energy is a viable source of energy, and of income. The development of this energy source has ebbed and flowed over the prior twenty years. Yet looking at it in 2018, the state is quickly becoming a preferred site for wind farms.

Why examine ordinance writing? Because counties should abandon their seeming indifference and treat wind energy development with as much serious attention as that given to writing oil and gas production rules or water law. The wind energy economy is here to stay. Under South Dakota law counties have a significant say-so in wind turbine law. The advantage of this? Local leaders get to make local law. The disadvantage? While a good amount of state legislation is done without the benefit of clergy, even less clerical advice can be found in certain existing county ordinances. “Local lawmaking” does not get the attention the public and media give to a state legislative session.

Ordinances governing wind energy systems, which are to be developed within a county, have a wide ranging effect on the local geography and economy. Local participation in ordinance drafting is a great advantage of county lawmaking. This leaves an opportunity for county commissioners to make the public, its local residents, “partners” in this lawmaking. There should be little uncertainty in ordinance language, it should be transparent, and the end product should favor open public participation in wind farm applications.

In reviewing the hazards of ordinance drafting I will put on the table relevant Walworth County ordinance language governing wind energy systems. The problems discussed here are not unique to Walworth County and are found in several of the ordinances of other counties.

The relatively new Walworth ordinance declares that a decision to grant a wind energy systems permit is an administrative matter. It is not. The state supreme court in 2009 held that a conditional use permit application is quasi-judicial and is subject to due process of the law. The county must be palpably fair to all parties affected in any decision to grant an operating permit. Conditional use permits are exceptional as such permits might approve operations in areas where the regular zoning rules would not allow it.

South Dakota’s constitution prohibits the legislature from writing private or special laws affecting only one party. In effect, granting a single wind farm developer approval of a particular project is akin to the county writing a private or special law. Because of this unique power courts have said that applications for such a permit must be subject to due process of the law with all its safeguards.

Due process requires a.) reasonable notice and b.) an opportunity to be heard at a meaningful time and in a meaningful manner. The Walworth ordinance fails on both counts. This ordinance should be rewritten.

a.) Reasonable notice. A public hearing is required on a Walworth County wind energy permit application. But inadequate public notice is provided under the current ordinance. The ordinance states that notice of a hearing shall be published once ten days prior to a hearing on the application in a newspaper in circulation in the affected area. Wind projects are often large in scope and are always important to a community. Is 10 days advance notice by newspaper sufficient for such an undertaking? The state supreme court recently ruled that a ten day advance notice would be sufficient on the facts of the case. But the court stated that the record in the case showed that the complaining party had not raised any concerns about the notice at the application hearing, and did not object to the notice process. The complaining party, according to the court, had not produced any evidence supporting its argument. It would be a fool’s errand to think this case was firm grounds for keeping a ‘ten day notice’ in a county’s ordinance language. Such one-time short notice by publication is an unreliable method of giving notice to the public. The U S Supreme Court has said, “The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.”

b.) The hearing. The process should provide an opportunity to be heard at a meaningful time and in a meaningful manner. The Walworth ordinance does not furnish sufficient advance notice nor does it require sufficient information for an interested party to prepare for such a hearing. The ordinance requires the applicant to advise adjacent property owners in writing of the “conditional use permit request.” The ordinance gives the applicant no guidance or directives as to ‘what’ information the applicant should give to the adjacent property owners. The ordinance does not require a description of the location of the project, nor does it require that the applicant provide property owners with a copy of the written application. At a minimum an ordinance should require that a notice to adjacent property owners refer them to a filed written application available at the county auditor’s office, include a copy of the application for the review by the affected property owners or cite to a link on the county website where the application is uploaded in full. Each of these is rather simple to do and not expensive for an applicant. This would allow interested parties to be meaningfully informed before the permit application hearing occurs.

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