State regulators decided unanimously Tuesday they won’t, at this time, revoke a permit granted last year for a wind-electricity project in northeastern South Dakota.
The three also unanimously approved a permit, with conditions, for a new project that the same company wants to build in the same area.
The state Public Utilities Commission took the actions.
The decision against revocation was for the permitted Crowned Ridge Wind, in Codington and Grant counties.
The commissioners also approved a permit for Crowned Ridge Wind II, a proposal for a 300-megawatt complex of 132 turbine towers in Codington, Deuel and Grant counties.
NextEra Energy Resources is developing both.
The commission had granted the permit July 26 for the 300-megawatt Crowned Ridge Wind.
The permit now is on appeal in state circuit court about sound, shadow flicker and avian-study issues.
A group of people who had intervened against granting the permit asked the commission September 12 to revoke it, after NextEra had told the commission the power production would be reduced to 200 megawatts.
One of the intervenors, Kristi Mogen of Twin Brooks, said Tuesday the company changed its plan after the commission had granted the permit.
Mogen said the court case is about granting the permit, while the revocation was about taking it back.
“The motion to revoke a permit should get a hearing,” she told commissioners.
The commission’s staff in February requested the revocation be denied or receive no action, saying the commission didn’t have jurisdiction.
Seven of the nine issues that intervenors raised in their revocation petition are pending in the court case, two of the other issues have already been decided by the commission, and the remaining issue is the subject of an enforcement complaint the staff filed against the project, according to a February 24 letter from staff attorney Kristen Edwards.
The complaint is that the project hasn’t yet installed an aircraft detection lighting system that the commission ordered as condition of the permit.
Miles Schumacher, a Sioux Falls lawyer representing NextEra, sent a letter to the commission March 10 saying the detection system will be operating by the end of June.
Commission chairman Gary Hanson said there appeared to be “a compelling reason” to hold a hearing after the court case is finished, but state law prevents the commission from moving forward until then.
Commissioner Chris Nelson said he agreed with the staff’s analysis that the commission didn’t have jurisdiction to consider a revocation if the matter has been taken to court.
Commissioner Kristie Fiegen meanwhile said the court case could result in “a major decision.”
On the detection system, the commission decided Tuesday to let the company and the staff attempt to negotiate a resolution rather than set a schedule for proceeding on the staff’s complaint.
The vote was 2-1. Commissioner Fiegen dissented, saying she wanted to wait until after the court case was done.
On Crowned Ridge Wind II, Schumacher said the project would comply with various regulations, wouldn’t interfere with the orderly development of the region, and would pay property taxes, benefit the community, create temporary jobs for up to 250 construction workers and provide permanent jobs for seven to 10 employees.
Intervenor Amber Christenson of Strandburg said the burden of proof rested “solely” on the applicant.
“There is no reliable sound study for the commission to review,” Christenson said. She said the cement-batch plant would jeopardize public safety and she listed other shortcomings, including that the project hadn’t applied for federal approval of the aircraft lighting detection system.
Schumacher in return said the project would find a different location for the cement-batch plant and would file a roads-use report. He said an application for the lighting-detection system was filed March 12.
A state Game, Fish and Parks Department biologist said the main concern was wind projects “fragment” grasslands and affect species of nesting birds that have been in decline for decades.
Among conditions that commissioner Nelson added were requiring the project conduct studies of prairie grouse, other birds and bats, and developing a plan to prevent collisions between whooping cranes and turbine blades.
Commissioner Hanson agreed, saying he wants it clear GFP has access to the project area.
State law requires that any future owner accept permit conditions.
Nelson said the applicant was entitled by law to the permit but the conditions would protect the people and the property in the area. Not everybody would be happy, Nelson said.
Commissioner Hanson said wind dockets were always troubling to him. “They didn’t start out that way, seventeen years ago, when we first started working on them,” he said.
Hanson said as a former legislator that lawmakers have freedom, while commissioners must follow the laws. “I think we’ve provided some excellent conditions here. I’d certainly like to have a couple more on there,” he said.
Hanson said he was uncomfortable with property valuations being affected by their proximity to a wind farm – “It’s a question of how close is too close,” – and encouraged the Legislature and county commissions to revisit the setback laws.
Commissioner Fiegen said the public record showed the project should be permitted. “We have to look at evidence and facts,” she said.
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