Brown County commissioners are letting a pipeline moratorium expire with plans to craft a new one that has a different focus.
That’s what they decided during their lengthy meeting on Tuesday, July 18 at the Brown County Courthouse Annex.
Commissions hope a new moratorium can be put in place that would delay any local pipeline permitting until at least after the South Dakota Public Utilities Commission makes a decision on Summit Carbon Solutions’ proposed carbon sequestration line. A public hearing is set for next month in Pierre with the PUC having said it will have a decision on the permit application by Nov. 15.
More than 20 citizen pipeline opponents attended the county meeting, most of whom encouraged the commission to keep the original moratorium in place. But it will expire on Wednesday, July 19 while something new is designed.
The commission enacted the moratorium on July 19, 2022, to buy time to look at its setback regulations for hazardous material pipelines. Such lines now have to be 1,500 feet from a property line. The purpose of the moratorium has been achieved, commissioners said, so keeping it in place isn’t helpful.
Summit has sued Brown County over the moratorium. Given the lawsuit, keeping the moratorium in place could just cost the county more money that would be better used for ordinance enforcement, said Commissioner Mike Gage.
There are also concerns about the legality of a new moratorium, which is why commissioners decided to work with the state’s attorney’s office on authoring it. Gage and Commissioner Drew Dennert volunteered for that task.
The county wants to make sure anything put in place can be legally defended.
Commissioner Doug Fjeldheim said he has visited with a private attorney and voiced concerns that a new moratorium could result in a request for a court injunction, especially if it’s specifically designed to stop — as opposed to pause — a project.
Commissioner Mike Wiese said there’s no value in extending the original moratorium. A second moratorium needs to be properly authored because it will be “picked apart with a fine-tooth comb,” he said.
Extending the moratorium could have left the county is a worse spot from a legal standpoint, he said.
For those reasons, Dennert’s motion to extend the current moratorium was defeated 4-1. But the option was discussed thoroughly with Fjeldheim noting not much could be done legally in a month’s time were it kept in place.
Commission Chairman Duane Sutton said the county already has control over potential pipeline permitting for the next month.
It would be difficult to get a permit approved in the next month, county officials said, and any request before the planning and zoning board could also include a 30-day stipulation. By then, Sutton said, the new moratorium should be in place.
Wiese said the threshold for a hazardous material pipeline permit in the county is already strong. Any line has to be 1,500 feet away from property lines unless a landowner agrees to a waiver, he said.
Those against the pipeline, though, told commissioners that Summit is already ignoring the setback ordinance.
The state’s attorney’s office recommended letting the first moratorium expire.
Deputy State’s Attorney Ross Aldentaler said a new moratorium can be created, but the office will want specific guidance from the commission. And he offered a word of caution.
“We had one moratorium bullet and we fired it. I don’t know if a new one would be valid,” he said.
Some pipeline opponents suggested either the original or a possible second pipeline moratorium be in place until November 2024. That’s when the federal Pipeline and Hazardous Materials Safety Administration will update its regulations concerning carbon sequestration pipelines.
What, if any, changes could be made remains unknown.
Commission approves resolution calling for eminent domain reform by Noem, Legislature
The commission unanimously approved a resolution asking Gov Kristi Noem and the state Legislature to take up eminent domain reform. It calls for eliminating “the taking of private property for non-public use.”
Dennert, who crafted the resolution, read it during the meeting.
Near the end of the meeting, state Rep. Carl Perry told commissioners that a group of legislators has submitted a request for a special legislative session to discuss eminent domain, pipelines and property rights. Even if their call doesn’t result in a special session, landowners now know which state lawmakers support them, he said.
Perry and Reps. Brandei Schaefbauer, R-Aberdeen, and Scott Moore, R-Ipswich, are among the legislators requesting a special session.
While Republican Gov. Kristi Noem has said she backs South Dakota landowners, pipeline opponents want her to take action. Earlier this month, they delivered to her office petitions with 2,000 signatures on them calling for a special session on property rights.
Noem has said she won’t call for a special session, and some Republicans agree with that decision. If there’s no chance to pass a helpful bill, it would be a waste of time and money, they have said.
An attempt to improve the state’s eminent domain laws cleared the state House earlier this year, but failed in the Senate.
Summit won’t abide by county’s setback ordinance, commissioners, opponents agree
Summit Carbon Solutions has no intent to abide by the Brown County’s 1,500-foot setback ordinance, commissioners and pipeline opponents said during the meeting.
Gage said Summit’s CEO has made that clear in paperwork already filed with the PUC. Summit will ask the PUC to preempt setback regulations approved by counties, he said.
The company doesn’t even want to abide by the 350-foot setback ordinance approved by the Minnehaha County Commission, Gage said.
He didn’t have to convince pipeline opponents who attended the meeting of that.
Nobody from Summit addressed the concerns raised during the meeting.
Of the property owners in attendance, Jared Bossly said the planned pipeline route is only 800 feet from his home. Dennis Wells said the line is set to be only about 100 feet from his home. Freddie Robinson, former Brown County Emergency Management director, said the route is within 1,300 feet of his home.
Bossly said there are no other carbon pipelines that operate at 2,200 pounds per square inch like Summit’s proposed line would. It presents a huge danger, he said.
It’s clear that Summit isn’t worried about any action the county might take, be that setback regulations or moratoriums, Wiese said.
Bossly and Dennis Feickert, a former county commissioner and state lawmaker, both called for more action by the county, with Feickert even suggesting a lawsuit against Summit.
Feickert also told commissioners that Summit being a sponsor of the Brown County Fair is “disgusting.” It reflects poorly on commissioners that they are allowing that, he said.
But, as discussion about Summit and the pipeline concluded, he and other pipeline opponents acknowledged that they know commissioners are working on their behalf and offered their thanks.
Sutton said the commission supports landowner rights but has to be cautious with formal action. There are still many questions about what is and isn’t allowed and what is and isn’t legal, he said.
Weise echoed that comment, adding that the county wants to be in the strongest position possible when it comes to protecting property rights.