The South Dakota Public Utilities Commission turned down the request from Crocker Wind Farm for reconsideration Tuesday.
Commissioner Chris Nelson received yes votes from commissioner Gary Hanson and chairwoman Kristie Fiegen to reject it again.
The panel halted the Clark County project Oct. 25. One reason: Crocker Wind Farm submitted multiple layouts for where its turbines would be.
Reese Almond, a Sioux Falls lawyer representing landowners from the county, said state law calls for the application to contain one design.
Brett Koenecke, a Pierre lawyer for the wind project, said Tuesday he wanted the commission to determine how best to proceed.
Koenecke said the company was willing to waive the six-month requirement in state law that the commission must decide whether to permit a wind-power project. The original application came July 25.
Sitting to his right was Betsy Engelking, vice president of policy and strategy at parent company Geronimo Energy.
Koenecke said Basin Electric wants the substation infrastructure for the project started in June 2018. “That’s their wish and desire,” he said.
Basin Electric, based at Bismarck, North Dakota, wasn’t represented at the meeting.
Koenecke said he has told Clark County’s lawyers, who are based in Aberdeen, “in writing” that the company accepts the three-quarters of a mile setback requirement from the county planning board.
“That’s an issue that’s no longer on the table in our minds,” Koenecke said.
But Koenecke said the company remains concerned about the single plan being required. He said a single plan wasn’t required for the Buffalo Ridge II project in eastern South Dakota.
“In my view it’s our rule to waive,” Koenecke said about the six-month requirement. “We’re willing to give more time.”
The number of towers decreased. “There won’t be more. There’s going to be less as a result of this process,” Koenecke said.
Almond said Crocker Wind Farm served 132 pages of discovery requests on the interveners shortly before the docket was dismissed.
Crocker Wind Farm should start the project “fresh” with a new application, Almond said.
Fiegen asked why Crocker didn’t submit a new application in November. Engleking said Crocker could still get a decision by June.
Fiegen asked what Engleking meant by “a lot of work” that’s been accomplished. Engleking said Crocker would like to discuss whether another public-input hearing would be necessary.
Nelson asked Koenecke where the project stands regarding financing and purchase of power. Engleking replied: “We expect to have that wrapped up in April or May.” She said there are three possible buyers in talks now.
Koenecke then acknowledged other issues are part of the litigation pending against Clark County.
“To the interveners, you should expect changes,” Koenecke said. He said tower locations would be further reduced. He said the potential U.S. Fish and Wildlife Service easement sites are now 15 rather than 41. The federal agency hasn’t issued decisions.
Nelson moved to deny the reconsideration. “I think it’s now understandable exactly what the plan is,” Nelson said. “What I can’t get around is the statutory six-month deadline.”
Nelson gave “a hat tip” to commissioner Hanson who said Oct. 25 the project could be finished in one year.
Hanson said he appreciated the applicant waiving “their right” to the six-month rule. He said it had been 18 months before the Legislature changed the law more than a decade ago. He suggested the wind-permit law should be consistent with other commission dockets at one year.
“Somehow laws and rules always get in the way, don’t they?” Hanson said.
Hanson said he believed the six-month period could be extended. He said the commission “often” requests additional data and information from applicants. He further said the commission has waived time frames in the past.
But, Hanson said, the interveners’ lawyer made the key argument for protecting the interveners’ resources.
“That is what tipped the scale for me and the reason I will vote for the motion,” Hanson said.
Feigen said the Legislature gave the commission authority for six months. “They didn’t give us authority to waive that six months,” she said. “We may have to be more flexible in the future.”
Koenecke said the project would proceed.
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