SD Supreme Court docket Upholds Approval of Wind Power Farm Constructing Allow

This put up was authored by Matthew Loescher, Esq.

Topped Ridge Wind II, LLC utilized to the South Dakota Public Utilities Fee (“PUC”) searching for permission to assemble a big wind power farm in northeast South Dakota. A number of people from Grant and Codington Counties who had been affected by the potential wind farm intervened to oppose Topped Ridge’s software. The PUC carried out a contested case listening to and thereafter issued a written resolution approving the allow. The intervenors sought overview within the circuit courtroom. The courtroom affirmed the PUC’s resolution and two of the intervenors appealed.

On enchantment, the Intervenors first argued that Topped Ridge failed to satisfy its burden in establishing that the Undertaking would adjust to relevant legal guidelines and guidelines as a result of Topped Ridge carried out sound modeling primarily based on a zoning ordinance that was amended after Topped Ridge obtained a CUP. The report mirrored that whereas the PUC was not concerned in granting CUPs or drafting the ordinances round which the CUPs are licensed, it nonetheless thought of this argument through the contested case listening to and decided that Crown Ridge was already in compliance with the relevant legal guidelines and guidelines in Grant County on the time the allow software was submitted. Moreover, Topped Ridge complied with ARSD 20:10:22:23 by offering a forecast of the affect that the development, operation, and upkeep of the Undertaking would have on stable waste administration services. As such, the courtroom held that the PUC didn’t err when it decided Topped Ridge met its burden of proof to adjust to all relevant legal guidelines and guidelines.

The Intervenors subsequent contended that failing to comply with the unique Grant County ordinance requiring sound measurements under fifty decibels at accent buildings “runs immediately afoul” of SDCL 49-41B-22(3). Right here, unrebutted testimony and sound examine established that the Undertaking additionally complied with the fifty-decibel restrict even at unoccupied accent buildings. Accordingly, it was not clear error for the PUC to find out that adopting the noise ranges set out within the amended Grant County ordinance posed no hazard to the well being, security, or welfare of the inhabitants dwelling close to the Undertaking.

As a ultimate matter, the courtroom famous the textual content of the regulation didn’t particularly require an air high quality examine, however merely said that the applicant should present proof that the power will adjust to air high quality laws. The PUC’s willpower that Topped Ridge has carried out so was not clearly misguided, because the PUC adopted the relevant statutory directives in granting the development allow to Topped Ridge and accurately decided that Topped Ridge glad its burden of proof underneath SDCL 49-41B-22.

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