#29615-a-MES 2022 S.D. 46
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF ADMINISTRATIVE APPEAL GARRY EHLEBRACHT, STEVEN GREBER, MARY GREBER, RICHARD RALL, AMY RALL, AND LARETTA KRANZ, Appellees,
and
AMBER KAY CHRISTENSON and ALLEN ROBISH, Appellants,
v.
CROWNED RIDGE WIND, LLC, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL COUNTY, SOUTH DAKOTA
THE HONORABLE DAWN M. ELSHERE Judge
R. SHAWN TORNOW Sioux Falls, South Dakota Attorney for appellants.
MILES F. SCHUMACHER of Lynn Jackson Shultz & Lebrun P.C. Sioux Falls, South Dakota ****
CONSIDERED ON BRIEFS NOVEMBER 8, 2021 OPINION FILED 08/03/22 BRIAN J. MURPHY of NextEra Energy Resources, LLC Juno Beach, Florida Attorneys for appellee Crowned Ridge Wind, LLC.
AMANDA M. REISS KRISTEN N. EDWARDS of South Dakota Public Utilities Commission Attorneys for appellee South Dakota Public Utilities Commission. #29615
SALTER, Justice
[¶1.] Crowned Ridge Wind II, LLC (Crowned Ridge) applied to the South
Dakota Public Utilities Commission (the PUC) seeking permission to construct a
large wind energy farm in northeast South Dakota. Several individuals from Grant
and Codington Counties who were affected by the potential wind farm intervened to
oppose Crowned Ridge’s application. The PUC conducted a contested case hearing
and later issued a written decision approving the permit. The intervenors sought
review in the circuit court. The court affirmed the PUC’s decision and two of the
intervenors now appeal to this Court. We affirm.
Facts and Procedural History
[¶2.] Crowned Ridge requested permission from the PUC to construct a
wind farm comprised of 132 wind turbines capable of producing 300.6 megawatts of
electricity in Codington, Grant, and Deuel Counties (the Project). 1 In addition to
Crowned Ridge, other parties to the permit application process included PUC staff
as well as “[a]ny person residing in the area where the facility is proposed to be
sited, or any directly interested person” who applies for and obtains “party status.”
SDCL 49-41B-17(4). Amber Christenson and Allen Robish (the Intervenors), both of
1. Under the provisions of SDCL 49-41B-2(13), the Project was defined as a “[w]ind energy facility” because its size and design contemplated generating “one hundred megawatts or more of electricity.” The Project also satisfied the broader statutory definition of a “[f]acility,” which includes a wide variety of energy facilities. SDCL 49-41B-2(7). Accordingly, Crowned Ridge could not begin construction of the Project without obtaining a permit from the PUC. See SDCL 49-41B-4.
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whom live in rural areas near the Project, timely sought and obtained party status
to oppose the issuance of the permit. 2
[¶3.] The PUC conducted a contested case hearing using the procedures set
out in South Dakota’s Administrative Procedure Act contained in SDCL chapter 1-
26. See SDCL 49-41B-17.2. As part of the hearing, the PUC received evidence
concerning the potential impacts of the Project on the environment and surrounding
communities.
[¶4.] The hearing produced extensive testimony from seventeen witnesses,
many of whom submitted “pre-filed” testimony and exhibits detailing the evidence
they developed and reviewed concerning the potential impacts of the Project. 3 The
Intervenors raised several points of contention with the permit application. As they
relate to this appeal, the Intervenors questioned Crowned Ridge’s compliance with a
Conditional Use Permit (CUP) issued by Grant County, the future impact the
Project would have on solid waste management facilities, and the potential adverse
health effects the Project would have on local inhabitants.
2. The PUC also granted party status to seven additional area residents who opposed the issuance of the permit. Six of those individuals were represented by different counsel during all stages of their challenge to the permit application process and were parties to the appeal decided in Ehlebracht v. Crowned Ridge Wind II, LLC, 2022 S.D. 19, 972 N.W.2d 477.
3. See ARSD 20:10:22:39 (stating in part, “[u]pon the filing of an application pursuant to SDCL 49-41B-11, an applicant shall also file all data, exhibits, and related testimony which the applicant intends to submit in support of its application”).
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The Grant County CUP
[¶5.] Prior to the hearing, Crowned Ridge submitted pre-filed testimony of
senior project manager Tyler Wilhelm who stated that Crowned Ridge was
“responsible for obtaining all applicable federal, state, and local permits” required
for construction of the Project. On behalf of Crowned Ridge, Wilhelm applied for a
Wind Energy System CUP from the Grant County Board of Adjustment, which the
Board approved. The CUP application stated that “[the Project] adheres to the . . .
Wind Energy System requirements, as outlined in § 1211[,] Energy System (WES)
Requirements of the Grant County Zoning Ordinance.”
[¶6.] During Wilhelm’s testimony at the contested case hearing, the
Intervenors questioned him regarding a subsequent amendment to the Grant
County zoning ordinances governing wind energy facilities. The zoning ordinance
in effect at the time the Grant County Board of Adjustment issued the CUP to
Crowned Ridge contained a provision limiting the maximum level of ambient noise
produced by wind turbines to 50 dBA 4 “at the perimeter of the principal and
accessory structures . . . .” However, eleven days after the issuance of the Crowned
Ridge CUP, Grant County amended the ordinance, limiting the sound generated by
4. The unit abbreviation “dBA” refers to “A-weighted decibels.” It is “a unit for measuring sound levels, approximately equal to the smallest difference in loudness detectable by the human ear.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 42 n.13, 706 N.W.2d 791, 802 n.13 (Sabers, J., dissenting).
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wind turbines to “45 dBA . . . measured twenty-five (25) feet from the perimeter of
the existing non-participating residences[5] . . . .”
[¶7.] According to Wilhelm, Crowned Ridge had, in fact, been instrumental
in the amendment to the noise ordinance, explaining that “[w]e were part of that . . .
process with the counties to get a new wind ordinance in place . . . .” Although
Wilhelm acknowledged that the CUP was issued to Crowned Ridge prior to the
adoption of the amended ordinance, he maintained that “[Crowned Ridge’s]
application that we filed is 100 percent consistent with what was adopted after our
filing and our approval date.”
[¶8.] Crowned Ridge also submitted pre-filed testimony from Jay Haley, a
wind energy consultant, who was engaged by Crowned Ridge to conduct studies
using computer-based modeling to estimate the level of noise the wind turbines
would produce during operation. During Haley’s testimony at the hearing, the
Intervenors also questioned him about the amendment to the Grant County zoning
ordinance. Haley testified that, in order to test compliance with the Grant County
zoning ordinance in effect at the time the CUP was issued, he conducted sound
studies on all principal and accessory structures located within the Project’s
footprint, which included over 170 receptor locations. According to his study, each
of the principal and accessory structures fell within the fifty-decibel limit contained
in the original Grant County ordinance.
5. The term “non-participating residences” describes individuals living near a wind farm project who have not entered into lease or easement agreements to participate in the project with the wind farm developer.
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[¶9.] However, after the zoning ordinance was amended to require noise
limits measured only at non-participating residences, Haley revised his study to
include only those measurements. Haley testified that the final version of his study
included four non-participating residences in Grant County. Based upon the results
of his sound study, Haley opined that all four non-participating residences were
forecasted to receive an ambient noise level below the forty-five-decibel limit
imposed by the amended Grant County zoning ordinance.
Solid Waste Management Facilities
[¶10.] Crowned Ridge also submitted pre-filed testimony of Mark Thompson,
the manager of wind engineering and construction for Crowned Ridge. Thompson’s
testimony concerned the details of the Project’s construction, operation,
maintenance, and eventual decommissioning. During the hearing, the Intervenors
questioned Thompson about Crowned Ridge’s plan for the disposal of what would
potentially include millions of pounds of waste in the form of fiberglass turbine
blades and other waste accumulated at the time of the Project’s decommissioning.
Thompson stated:
The plan as it stands right now is to cut these blades up into pieces for transport and dispose of them in landfills. Now this is usually a contracted process. And the landfills could either be local or off-site or out of state. Given that we’re over 20 years away [from decommissioning], we think that there would be, you know, processes that are developed or put in place to maybe recycle some of these.
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[¶11.] Crowned Ridge also submitted pre-filed testimony from Christopher
Ollson, PhD. 6 Dr. Ollson was engaged by Crowned Ridge to study the potential
health implications associated with the Project’s operation. At the evidentiary
hearing, the Intervenors asked Dr. Ollson about the potential for carcinogens
leaching into the environment in the event the turbine blades were disposed of in a
local landfill. Although Dr. Ollson admitted he had not been engaged by Crowned
Ridge to study the precise effects of blade disposal, he testified that “[the turbine
blades] would have to be disposed of in a properly licensed landfill, and that landfill
itself would be monitored. But there’s nothing from the blades that would come out
of the blades and enter into the environment and impact health.” Ultimately, Dr.
Ollson concluded that “there would be no undue risk from anybody living around
the landfill [because] of blades being disposed of.”
[¶12.] Darren Kearney, a utility analyst employed by the PUC staff, also
testified about the turbine blade disposal process. Kearney testified that the PUC
staff believed the topic of blade disposal in the future was best addressed by
ensuring adherence to the decommissioning plan proposed by Crowned Ridge,
verifying that Crowned Ridge was financially prepared to fund the decommissioning
process, and confirming that proper disposal practices were observed. According to
Kearney, the PUC staff “[does not] get into the details of where those wastes are
going to go, what specific landfill they’re going to be placed in. That will be decided
25 years from now when the blades are ready for removal.” Pursuant to Crowned
6. Dr. Ollson is an environmental health scientist who, according to his pre-filed testimony, is “trained, educated, and practiced in the evaluation of potential risks and health effects to people associated with environmental health issues.”
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Ridge’s decommissioning plan, which Kearney had reviewed, the “[m]aterials will be
disposed where disposal is permitted and where there is capacity for the disposal
. . . . All unsalvageable materials will be disposed of at authorized sites in
accordance with applicable regulations.”
Potential Adverse Health Effects
[¶13.] The Intervenors’ final basis for opposing the permit revolved around
the potential adverse health effects the Project might have on the local residents
living near or within the Project boundary. The Intervenors’ allegations on this
point pervaded the entirety of the hearing, and testimony from several of the
witnesses focused specifically upon the topics of health and safety.
[¶14.] The Intervenors questioned Haley about the possibility of measuring
other types of sound. For instance, Haley acknowledged that Crowned Ridge did
not request, and he did not prepare, a study to measure the naturally occurring
ambient noise levels within the Project’s boundary as they existed prior to turbine
construction. Haley further testified that he did not conduct a study on the Project’s
potential to produce infrasound. 7 Richard Lampeter, an acoustical consultant
engaged by Crowned Ridge, similarly testified that he did not conduct an
infrasound study for the Project.
[¶15.] Dr. Ollson testified that, after his review of the scientific literature
concerning the effects of infrasound on human health, infrasound “would not be a
7. “Infrasound” refers to sound waves with frequencies below the limit of human audibility. See Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 989 A.2d 1128, 1132 (Me. 2010) (describing infrasound as registering a measurement of “less than twenty [hertz], [which is] generally considered the normal limit of human hearing”).
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concern for the Crowned Ridge project . . . .” Crowned Ridge also submitted pre-
filed testimony of Robert McCunney, M.D. Dr. McCunney stated that, based on a
study he co-authored, “there is no scientific evidence to support the hypothesis that
wind turbine infrasound and low-frequency sound have unique diverse health
effects that other sources of noise do not have.”
[¶16.] David Hessler, an acoustical engineer engaged by the PUC staff to
review the work conducted by Dr. Ollson and Dr. McCunney, stated in his pre-filed
testimony that “no adverse health effects are likely to result from either the
infrasonic or low frequency sound emissions from the Project.” Hessler ultimately
concluded that “the preponderance of the current evidence, research and the
mainstream expert opinion indicates that there is no link between the extremely
low levels of low frequency sound generated by wind turbines and any adverse
health outcomes.”
[¶17.] Finally, the Intervenors questioned Lampeter concerning the Project’s
potential impact on air quality. Lampeter acknowledged that Crowned Ridge had
not asked him to conduct an air quality study relating to the Project. In its
application, Crowned Ridge did address the topic of air quality and stated that “[n]o
impacts [on air quality] from Project operation are anticipated nor will the Project
produce air emissions that will impact the surrounding area.” The application also
stated Crowned Ridge’s commitment to the use of “BMPs [best management
practices] to minimize air quality pollution emissions” around the Project area.
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The PUC’s Final Decision and Order
[¶18.] The PUC voted unanimously to approve Crowned Ridge’s permit and
issued a final decision and order that included findings of fact and conclusions of
law. 8 As it relates to this appeal, the PUC determined that “the Project will comply
with applicable laws and rules,” that “[t]he Project will be decommissioned in
accordance with applicable state and county regulations,” that “the Project will
comply with applicable air and water quality standards and regulations,” and that
Crowned Ridge “has appropriately minimized the sound level produced from the
Project.” The PUC ultimately concluded that Crowned Ridge “satisfied [its] burden
of proving all of the requirements imposed by SDCL 49-41B-22 for issuance of the
permit to construct by the preponderance of the evidence.”
[¶19.] The Intervenors timely filed a notice of appeal in circuit court. See
SDCL 49-41B-30 (“Any party to a permit issuance proceeding aggrieved by the final
decision of the Public Utilities Commission on an application for a permit, may
obtain judicial review of that decision by filing a notice of appeal in circuit court.”).
The Intervenors asked the court to reverse the PUC’s decision, arguing that
Crowned Ridge had failed to meet its burden of proof under SDCL 49-41B-22 9 and
claiming the evidence did not establish that “the proposed facility will comply with
all applicable laws and rules [or that] the facility will not substantially impair the
8. Crowned Ridge Wind II, LLC, No. EL19-027, 2020 WL 1877721 (S.D. P.U.C. Apr. 6, 2020).
9. As explained in greater detail below, SDCL 49-41B-22 lists four requirements an applicant must establish for the issuance of a siting permit, including compliance with all applicable laws, no threat of serious injury in the siting area, no impairment to health, safety and welfare, and no undue interference with “orderly development of the region[.]”
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health, safety or welfare of the inhabitants.” Citing testimony from the contested
case hearing, the Intervenors asserted that Crowned Ridge failed to abide by the
zoning ordinance in effect at the time the Grant County CUP was issued, that
Crowned Ridge failed to follow a specific PUC rule requiring plans for disposal of
solid waste, and that Crowned Ridge’s failure to procure an air quality study or a
pre-construction sound study within the Project’s boundary rendered infirm the
PUC findings and conclusions related to the Project’s health and safety effects.
[¶20.] The circuit court rejected the Intervenors’ arguments and affirmed the
issuance of the permit. In their current appeal to this Court, the Intervenors have
raised what are essentially four issues for our review. 10 We restate them as follows:
1. Whether the PUC erroneously determined that the Project complied with all applicable laws and rules.
2. Whether the PUC clearly erred when it found that Crowned Ridge complied with both versions of the Grant County ordinance.
3. Whether the PUC erroneously determined that Crowned Ridge complied with applicable administrative rules.
10. This decision fits within a group of cases involving wind energy projects in northeast South Dakota. Though there are certain overlapping or similar factual aspects, we have carefully considered the particular arguments presented in each case. Nevertheless, the cases feature the same or similar party names, and in an effort to avoid confusion and distinguish these unique cases, we provide the following descriptions for each of these other decisions: Ehlebracht v. Deuel Cnty. Planning Comm’n, 2022 S.D. 18, 972 N.W.2d 464 (challenge to Deuel County permitting process relating to the Crowned Ridge Wind II project); Ehlebracht v. Crowned Ridge Wind II, LLC, 2022 S.D. 19, 972 N.W.2d 477 (challenge to PUC permitting process relating to the Crowned Ridge Wind II project); Christenson v. Crowned Ridge Wind, LLC, 2022 S.D. 45, 978 N.W.2d 756 (challenge to PUC permitting process relating to the Crowned Ridge Wind project).
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4. Whether the PUC clearly erred when it found that the Project would not impact the health, safety, or welfare of the inhabitants within the Project area.
Standard of Review
[¶21.] The text of SDCL 1-26-36 provides the standard used to determine
whether an administrative agency’s decision may be reversed or modified, and
provides in relevant part:
The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in light of the entire evidence in the record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
[¶22.] The provisions of “SDCL 1-26-36 delineate[ ] the standard for a circuit
court’s review of an administrative agency’s decision, and ‘[t]he same rules apply on
appeal to this Court.’” Anderson v. S.D. Ret. Sys., 2019 S.D. 11, ¶ 10, 924 N.W.2d
146, 148–49 (alteration in original) (quoting Lagler v. Menard, Inc., 2018 S.D. 53,
¶ 22, 915 N.W.2d 707, 715). Specifically, we have held that:
Questions of law are reviewed de novo. Dakota Trailer Mfg., Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11, 866 N.W.2d 545, 548. Matters of reviewable discretion are reviewed for abuse. SDCL 1-26-36(6). The agency’s factual findings are reviewed under the clearly erroneous standard. SDCL 1-26- 36(5). The agency’s decision may be affirmed or remanded but cannot be reversed or modified absent a showing of prejudice. SDCL 1-26-36. -11- #29615
Id. (citation omitted).
[¶23.] To determine whether an agency’s findings of fact are clearly
erroneous, “[w]e review the PUC’s decision and decide whether, based on the
evidence as a whole, we are left with a definite and firm conviction that a mistake
has been made.” In re Otter Tail Power Co. ex rel. Big Stone II, 2008 S.D. 5, ¶ 29,
744 N.W.2d 594, 603.
[¶24.] We note at the outset that there appears to have been some confusion
among the parties and the circuit court regarding the proper standard of review
applicable to an agency’s findings of fact. The appellate briefs of the Intervenors
and Crowned Ridge, as well as the circuit court’s memorandum opinion, all state
that an agency’s factual findings are reviewed under a “substantial evidence”
standard. However, this is not correct.
[¶25.] We have noted that “SDCL 1-26-36 was amended effective July 1,
1978, changing the standard of review for sufficiency of the evidence from
‘unsupported by substantial evidence on the whole record’ to ‘clearly erroneous.’”
Sopko v. C & R Transfer Co., Inc., 1998 S.D. 8, ¶ 7, 575 N.W.2d 225, 228. As we
stated in Sopko, “[e]ven when substantial evidence supports a finding, reviewing
courts must consider the evidence as a whole and set it aside if they are definitely
and firmly convinced a mistake has been made.” Id. ¶ 7, 575 N.W.2d at 228–29.
[¶26.] The definition of “substantial evidence” cited in the circuit court’s
memorandum opinion still exists in a separate section of the code, see SDCL 1-26-
1(9), but the Legislature has removed it from the standard in SDCL 1-26-36. While
we have previously held that the use of the substantial evidence standard in lieu of
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the correct, clearly erroneous standard constituted reversible error, see In re Neb.
Pub. Power Dist., 354 N.W.2d 713, 718 (S.D. 1984), reversal on those grounds is not
necessary here given our authority to review the PUC’s decision in essentially the
same position as the circuit court. See Sopko, 1998 S.D. 8, ¶ 7, 575 N.W.2d at 229
(determining that “no remand is required” where the circuit court incorrectly
applied the substantial evidence standard because “we review the [agency’s] fact
findings the same as the circuit court”). 11
Analysis and Decision
The Project’s Compliance with Applicable Laws and Rules
[¶27.] As an administrative body, the PUC is charged with overseeing the
siting and construction of large-scale wind energy facilities within the state. See
SDCL 49-41B-1 (“[A] facility may not be constructed or operated in this state
without first obtaining a permit from the [PUC].”); SDCL 49-41B-4 (“No utility may
begin construction of a facility . . . without first having obtained a permit issued . . .
by the [PUC] . . . .”). An applicant seeking a wind energy facility construction
permit from the PUC must establish by the preponderance of evidence that:
(1) The proposed facility will comply with all applicable laws and rules;
(2) 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. An applicant for an electric transmission line, a solar energy facility, or a wind energy facility that holds a conditional use permit from the applicable local units of government is
11. In our In re Neb. Pub. Power Dist. decision, we stated that the “[u]se of the wrong standard of review is not merely harmless error[,]” 354 N.W.2d at 718, but we, nevertheless, considered the PUC’s harmless error argument and applied the correct standard of review. See id. at 719.
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determined not to threaten the social and economic condition of inhabitants or expected inhabitants in the siting area;
(3) The facility will not substantially impair the health, safety or welfare of the inhabitants; and
(4) The facility will not unduly interfere with the orderly development of the region with due consideration having been given the views of governing bodies of affected local units of government. An applicant for an electric transmission line, a solar energy facility, or a wind energy facility that holds a conditional use permit from the applicable local units of government is in compliance with this subdivision.
SDCL 49-41B-22.
[¶28.] Additionally, the Legislature has delegated to the PUC the authority to
promulgate rules governing the permitting and construction of wind energy
facilities. See SDCL 49-41B-35 (“To implement the provisions of this chapter
regarding facilities, the [PUC] shall promulgate rules pursuant to chapter 1-26.”).
The PUC has, in turn, adopted corresponding rules. See generally ARSD 20:10:22
(Energy Facility Siting Rules). Included among the PUC’s specific rules is ARSD
20:10:22:23, which states in relevant part: “The applicant shall include an
identification and analysis of the effects the construction, operation, and
maintenance of the proposed facility will have on the anticipated affected area
including . . . [a] forecast of the impact on . . . solid waste management facilities
. . . .”
[¶29.] Based on these statutory and regulatory requirements, the Intervenors
make several claims—some factual and some legal. First, they allege that Crowned
Ridge failed to meet its burden to establish that the Project will comply with
applicable laws and rules because Crowned Ridge conducted sound modeling based
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on a zoning ordinance that was amended after Crowned Ridge obtained a CUP.
However, this argument overstates the significance of the amendment and
overlooks the textual standard of SDCL 49-41B-22(1). 12
[¶30.] As to this latter point, SDCL 49-41B-22(1) requires an applicant for a
wind energy facility siting permit to establish that the project “will comply with all
applicable laws and rules[.]” (Emphasis added). This inquiry is forward looking
and does not allow, as the Intervenors argue, an opportunity for the PUC to conduct
a post hoc review of the Grant County Board of Adjustment’s decision to issue the
CUP.
[¶31.] Conditional use permits are creatures of statute and concern only the
county from which they originate. See In re Conditional Use Permit No. 13-08, 2014
S.D. 75, ¶ 11, 855 N.W.2d 836, 839 (“[T]he South Dakota Legislature empowered
individual counties to not only enact their own zoning ordinances, but also to permit
conditional uses of real property that might otherwise be contrary to those zoning
ordinances.”); see also SDCL 11-2-17.3 (stating, among other things, the
requirements for county approval of a conditional use permit). As such, the PUC is
not involved in granting CUPs or drafting the ordinances around which the CUPs
are authorized.
[¶32.] This is not to say the PUC should not consider whether the applicant
has procured the necessary authorization from local authorities or its current
12. The question of whether the PUC properly applied SDCL 49-41B-22(1) to Crowned Ridge’s permit request requires our interpretation of the statute and “the application of fixed rules of law” and we therefore review it de novo. See Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 296 (S.D. 1982) (citation omitted).
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compliance with the various regulatory requirements of other governmental bodies
as a means to predict future compliance with applicable laws and rules. This is
certainly an appropriate area of inquiry. But SDCL 49-41B-22(1) does not require
or authorize the PUC to act as a judicial body with the authority to determine
disputes as to the issuance of the applicant’s multitude of permits, licenses, or
certifications. See Nw. Bell Tel. Co. v. Chi. & N. W. Transp. Co., 245 N.W.2d 639,
641 (S.D. 1976) (“The Public Utilities Commission is an administrative body
authorized to find and determine facts, upon which the statutes then operate. It is
not a court and exercises no judicial functions.” (quoting In re Svoboda, 74 S.D. 444,
447, 54 N.W.2d 325, 327 (1952))).
[¶33.] In an effort to apply the forward-looking standard of SDCL 49-41B-
22(1), the PUC attached a condition to the permit requiring Crowned Ridge to
“construct, operate, and maintain the Project in a manner consistent with . . . all
applicable permits issued by a federal, state, or local agency with jurisdiction over
the Project[.]” This unquestionably includes the Grant County CUP. Moreover, this
condition—requiring compliance with all applicable laws—and other conditions
imposed by the PUC are not simply moral obligations. Noncompliance can be
addressed through civil and criminal remedies specifically authorized by statute.
See SDCL 49-41B-34 (stating each person “who constructs, operates, or maintains a
facility” that does not comply with a permit “is guilty of a Class 1 misdemeanor and
is subject to a civil penalty of not more than ten thousand dollars” with “[e]ach day
of violation . . . constitut[ing] a separate offense”).
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[¶34.] In the end, we believe the PUC correctly applied the legal standard in
SDCL 49-41B-22(1) by requiring Crowned Ridge to “comply with all applicable laws
and rules.” The statute did not, as the Intervenors suggest, obligate the PUC to
inquire further into the Grant County permitting process.
[¶35.] Beyond this, the fact that the CUP was issued under the former Grant
County ordinance regulating noise from wind turbines does not mean that Crowned
Ridge will not comply with “all applicable laws and rules.” The Intervenors’ logic
suggesting a contrary view is unsound and also contrary to the evidence contained
in the record, which supports the conclusion that the noise generated from the
Crowned Ridge Project will, in any event, satisfy both versions of the Grant County
ordinance. 13
[¶36.] In fact, the PUC considered this very argument during the contested
case hearing and was convinced that Crowned Ridge was already in compliance
with the applicable laws and rules in Grant County at the time the permit
application was submitted. In footnote twenty-four of its final decision and order,
the PUC explained:
At the evidentiary hearing, pro se Intervenor Christenson questioned whether Applicant was in compliance with the Grant County Ordinance in effect at the time Grant County voted to approve the Project or the Ordinance that was made effective after the County’s vote to approve the Project. Applicant testified that Grant County has indicated it intends to apply the Ordinance made effective shortly after approval of the CUP for the Project . . . . The record in this proceeding shows that Crowned Ridge Wind II complies with both versions of the Grant County Ordinance - the one in effect at the time of the approval of the Project by Grant County, and the one made effective shortly after the vote . . . . Therefore, the record shows that
13. This is a question of fact we review for clear error.
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Crowned Ridge Wind II will be in compliance with applicable laws, including the Grant County Ordinance.
[¶37.] This conclusion is supported by the testimony of Jay Haley, who
confirmed that, after the new zoning ordinance went into effect, the four non-
participating homes in Grant County were forecasted to receive fewer than forty-
five decibels of noise from the Project. 14
[¶38.] Suffice it to say that the PUC’s factual findings indicate that Crowned
Ridge possesses a valid Grant County CUP and, irrespective of which ordinance
applies, the Project is currently in compliance. Therefore, the PUC’s determination
that Crowned Ridge will continue to comply with applicable laws and rules is not
clearly erroneous. 15
[¶39.] The Intervenors make an additional claim that Crowned Ridge failed
to meet its burden under SDCL 49-41B-22(1) because it did not adequately comply
with ARSD 20:10:22:23, which requires the applicant to include “[a] forecast of the
impact” that “construction, operation, and maintenance of the proposed facility” will
have on “solid waste management facilities[.]” The Intervenors point to section
14. Intervenor Christenson resides in Codington County and her home was predicted by Haley’s study to receive a noise level of forty-one and two tenths decibels from the Project. Intervenor Robish lives in Grant County and his home was predicted to receive a noise level of thirty decibels.
15. This case bears little resemblance to the Intervenors’ principal authority, In re Conditional Use Permit Granted to Van Zanten, 1999 S.D. 79, 598 N.W.2d 861. In Van Zanten, we held that an ordinance that applied when the circuit court first considered an appeal from a county commission’s zoning decision continued to apply after a limited remand and the case’s return to circuit court. Id. ¶ 11, 598 N.W.2d at 864. However, the result was narrowly drawn to account for the “procedural wrinkle” presented by the limited remand and the intervening change in the ordnance—something we termed a “unique procedural situation[.]” Id. ¶ 10.
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eighteen of Crowned Ridge’s application, which addresses the Project’s “Community
Impact” under ARSD 20:10:22:23, claiming that section’s cursory statements
regarding solid waste management facilities are “unsubstantiated [and]
unproven[.]” We disagree. Whether Crowned Ridge complied with ARSD
20:10:22:23 is a mixed question of law and fact, which we will review de novo.
Permann v. Dep’t of Labor, 411 N.W.2d 113, 119 (S.D. 1987).
[¶40.] Here, section eighteen of Crowned Ridge’s permit application states,
“[c]onstruction and operation of the Project . . . is not anticipated to have significant
short- or long-term effects on . . . solid waste management facilities . . . .” Although
the PUC has not directly interpreted the meaning of the term “forecast,” we believe
section eighteen of the application adequately complies with the regulation’s
requirements.
[¶41.] To the extent this issue requires the interpretation of ARSD
20:10:22:23, we interpret its terms using the same principles used in the
interpretation of statutes. In re Black Hills Power, Inc., 2016 S.D. 92, ¶ 8, 889
N.W.2d 631, 633. “When regulatory language is clear, certain and unambiguous,
[the Court’s] function is confined to declaring its meaning as clearly expressed. It is
fundamental ‘that the words of a [rule] must be read in their context and with a
view to their place in the overall [regulatory] scheme.’” Id. ¶ 9, 889 N.W.2d at 634
(alterations in original) (citations omitted).
[¶42.] The language of ARSD 20:10:22:23 is clear, certain, and unambiguous.
Given its ordinary meaning, “forecast” is used in this regulation to require “a
prediction, as of coming events.” Forecast, American Heritage College Dictionary
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532, (3d ed. 1997). Crowned Ridge’s prediction in section eighteen of its application
that it did not anticipate any short- or long-term effects on solid waste management
facilities was made by drawing on the subject matter knowledge and expertise of
Crowned Ridge employees and consultants, developed over years of directly
applicable experience in connection with similar projects. Read in the context of the
entire application, the single line cited by the Intervenors was not so much cursory
as it was an apt summary. The 120-page application predicted minimal impact on
solid waste management facilities by synthesizing a large body of findings and
results obtained from analysis and studies conducted in preparation for
construction.
[¶43.] As it relates to the Intervenors’ concerns about blade disposal, the
decommissioning phase of the project is regulated by ARSD 20:10:22:33.01, which
requires an applicant to “provide a plan regarding the action to be taken upon the
decommissioning and removal of the wind energy facilities[.]” The fifteen-page
decommissioning plan was submitted as an appendix to Crowned Ridge’s
application and the testimony of Mark Thompson and Darren Kearney confirmed
that a plan was in place to deal with authorized waste facilities. The PUC also
required compliance with “the decommissioning plan set forth in Appendix N of the
Application” as a condition of its issuance.
[¶44.] Therefore, Crowned Ridge complied with ARSD 20:10:22:23 by
providing a forecast of the impact that the construction, operation, and maintenance
of the Project would have on solid waste management facilities. Under the
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circumstances, we conclude the PUC did not err when it determined Crowned Ridge
met its burden of proof to comply with all applicable laws and rules.
Health, Safety, and Welfare
[¶45.] The provisions of SDCL 49-41B-22(3) also require that a permit
applicant establish by the preponderance of the evidence that “[t]he facility will not
substantially impair the health, safety or welfare of the inhabitants.” The PUC’s
determination on this point is a finding of fact that we review for clear error. See
Hartpence, 325 N.W.2d at 296.
[¶46.] Here, the Intervenors make several allegations concerning the ways in
which they believe Crowned Ridge failed to satisfy its burden of proof. First, they
reallege their claim that failing to follow the original Grant County ordinance
requiring sound measurements below fifty decibels at accessory structures “runs
directly afoul” of SDCL 49-41B-22(3). However, this claim is not supported by the
record.
[¶47.] The effect of the amendment was to lower the maximum allowable
sound production for wind turbines from fifty decibels to forty-five decibels and
adjust the locations at which measurements were required to be taken from
“principal and accessory structures” to “non-participating residences.” The
Intervenors allege that because the amended ordinance reduced the number of
structures at which sound must be measured, they are deprived of an additional
regulatory “buffer.” We are not convinced.
[¶48.] The amended Grant County ordinance is, in some ways, more stringent
because it requires a lower sound threshold at the occupied structures of non-
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participating landowners. But it is unnecessary to determine the question of
relative rigor between the old and new versions of the ordinance. As noted above,
Jay Haley’s unrebutted testimony and sound study established that the Project also
complied with the fifty-decibel limit even at unoccupied accessory structures.
Therefore, it was not clear error for the PUC to determine that adopting the noise
levels set out in the amended Grant County ordinance posed no danger to the
health, safety, or welfare of the inhabitants living near the Project.
[¶49.] Next, the Intervenors claim that Crowned Ridge failed to meet its
burden under SDCL 49-41B-22(3) “to the extent that no-preconstruction sound
study was submitted to . . . the PUC.” However, as previously stated, Crowned
Ridge did, in fact, submit a sound study prior to the date of commercial operation,
conducted by Jay Haley, which estimated the predicted noise levels the Project
would produce.
[¶50.] After careful review of the record and the briefs, it appears that the
Intervenors’ “pre-construction sound study” term refers to a field study to measure
the ambient sound that existed naturally in the area prior to construction of the
Project. Crowned Ridge did not commission such a test, but it is unclear what
assistance it would have provided on the question of health and safety. We
therefore find this argument to be unsustainable.
[¶51.] The Intervenors also claim that Crowned Ridge failed to meet its
burden under SDCL 49-41B-22(3) because it did not submit a study on the effects of
infrasound. However, several witnesses provided expert testimony noting the
absence of any health effects stemming from infrasound. Dr. Ollson and Dr.
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McCunney both testified that infrasound presented no adverse health effects to
humans. Darren Kearney, the PUC’s utility analyst, reviewed the testimony of Dr.
Ollson and Dr. McCunney and agreed that infrasound did not pose a threat to
human health. Therefore, it was not clearly erroneous for the PUC to determine
Crowned Ridge met its burden of proof to demonstrate that “[t]he facility will not
substantially impair the health, safety or welfare of the inhabitants” as it related to
the topic of infrasound.
[¶52.] The Intervenors further claim that Crowned Ridge failed to meet its
burden of proof under SDCL 49-41B-22(3) because it did not submit an air quality
study to the PUC. The Intervenors cite ARSD 20:10:22:21, which states “[t]he
applicant shall provide evidence that the proposed facility will comply with all air
quality standards and regulations . . . .” Section sixteen of Crowned Ridge’s
application analyzes the existing air quality in South Dakota and predicts no
emissions from the Project that would impact the surrounding area. This is
perhaps not surprising given that wind energy production typically does not involve
the emission of carbon dioxide or other particulate airborne pollutants generally
associated with energy produced from fossil fuels. See Christine Real de Azua, The
Future of Wind Energy, 14 Tul. Envtl. L.J. 485, 495–96 (2001) (comparing emission
levels for traditional forms of energy production to wind energy production).
[¶53.] In any event, at multiple points in its application and throughout the
testimony in the contested case hearing, Crowned Ridge agreed to comply with all
applicable regulations and obtain any permits required by state or federal
regulatory agencies. Crowned Ridge also committed to using best management
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practices to avoid adverse impacts to air quality during construction. Furthermore,
the text of the regulation does not specifically require an air quality study, but
merely states that the applicant must provide evidence that the facility will comply
with air quality regulations. The PUC’s determination that Crowned Ridge has
done so was not clearly erroneous.
[¶54.] Finally, the Intervenors make a passing reference to a host of “health
concerns” in the final footnote to their brief. 16 However, these claims are not
sufficiently developed with legal arguments for their support and we decline to
address them further. Therefore, we hold the PUC’s findings were not clearly
erroneous as they relate to Crowned Ridge’s burden under SDCL 49-41B-22(3).
Conclusion
[¶55.] Based on our review of the record, the PUC followed the applicable
statutory directives in granting the construction permit to Crowned Ridge and
correctly determined that Crowned Ridge satisfied its burden of proof under SDCL
49-41B-22. We affirm.
[¶56.] KERN, DEVANEY, and MYREN, Justices, and SEVERSON, Retired
Justice, concur.
[¶57.] SEVERSON, Retired Justice, sitting for JENSEN, Chief Justice, who
deemed himself disqualified and did not participate.
16. The Intervenors generally mention the safety of travelers on the roadway, potential ice accumulation on turbine blades, and the impact of the Project on the health of wild and domestic animals.
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