PIERRE - The South Dakota Public Utilities Commission turned down an application Wednesday for a wind-energy complex proposed for Clark County.
The regulatory panel voted 3-0 to reject Crocker Wind Farm. The project called for up to 200 turbines spread across more than 29,000 acres north of Clark.
State law gave the commission six months to decide whether to grant a wind facility permit. The commission received the Crocker application July 25 and held a public input hearing Sept. 13 at Clark.
Reece Almond, a Sioux Falls lawyer, asked the commission Oct. 10 to dismiss the application.
He represented more than 40 people who intervened in the matter. Seven people quietly watched from the audience area Wednesday at the Capitol.
Almond, speaking to the commission by telephone, said several times that the company could submit another application when arrangements are complete.
"A more informed decision cannot be a bad thing here," Almond said.
Geronimo Energy, based in Edina, Minnesota, submitted to the commission four possible configurations.
Turbine locations were based on setbacks of 2,000 feet from non-participating residences.
But the Clark County Board of Adjustment issued a conditional-use permit with setbacks of 3,960 feet.
Almond said 35 turbines would be affected by the setbacks change.
Commission Chairwoman Kristie Fiegen focused foremost Wednesday on the multiple configurations.
Fiegen said the commission rule called for "a configuration." She said she couldn't imagine having to consider 100 or 200 configurations.
"It appears to me that should be singular," Fiegen said.
Brett Koenecke, a Pierre lawyer, represented the company. Koenecke replied to Fiegen that it would "be undue" for the commission to require a plan in final form.
"I don't think it fails to meet the rule. I don't. I won't concede that," Koenecke told her.
Commissioner Chris Nelson questioned Koenecke on the status of Crocker's negotiations with the U.S. Fish and Wildlife Service.
Koenecke said federal regulations provide for the possibility of land swaps that would allow turbines to be put on easements owned by the federal agency.
The land trades would involve exchanges of replacement property offered by the company to the agency. Crocker wanted to put 41 turbines on federal land.
As a condition, however, there couldn't be findings of significant environmental impacts on federal parcels the company wants, according to Koenecke.
He said a matrix would be used to determine potential effects on various species such as butterflies, birds and bats.
Is it a done deal? Koenecke asked himself. "No," he said.
Nelson asked whether Koenecke's client would accept the federal plan, whatever it might be.
Koenecke said he hadn't discussed that with the company but guessed that Geronimo's answer would probably be "in the middle" without complete rejection or full acceptance.
Nelson asked where the project was in the process of appealing the board of adjustment ruling to circuit court.
"We do not have a schedule at this point," Koenecke said.
Commission staff members so far made seven separate requests for more information from Crocker.
Nelson turned to commission lawyer Amanda Reiss and asked whether the public or the interveners could get the additional data Crocker was submitting.
"The interveners can always request to get that information," Reiss said.
A few minutes later Nelson formally called for the commission to deny the application. He stressed that he wasn't pre-judging whether the project was worthy.
His issue was the application's lack of certainty.
"The word configuration is clearly in the singular," Nelson said.
The commission shouldn't have to sort through multiple configurations, he said.
Nelson couldn't recall any previous instance when the commission received more than one possible plan.
"So this is something new," he told Koenecke.
Commissioner Gary Hanson originally wanted to deny the intervenors' motion for dismissal and allow the docket to proceed to an evidentiary hearing Dec. 11-15.
But after remarks by Nelson and Fiegen, and a break called by Fiegen that allowed Hanson to confer privately with two other commission lawyers for several minutes, Hanson changed his mind and joined the majority.
Hanson said he had been close to taking the side of Fiegen and Nelson in the first place. He justified his switch by comparing the state laws providing six months for decisions on wind permits and one year for other projects.
"The time constraint," Hanson said, "is unbelievably challenging."