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Summit will make new pipeline permit application in South Dakota

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Summit will make new pipeline permit application in South Dakota

Oct 03, 2023 | 5:39 pm ET
By Jared Strong
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Summit will make new pipeline permit application in South Dakota
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The South Dakota Public Utilities Commission denied Summit Carbon Solutions a pipeline permit in September. (Photo by Joshua Haiar/South Dakota Searchlight)

It could take more than a year for Summit Carbon Solutions to get approval for its proposed carbon dioxide pipeline in South Dakota.

That’s because the company, which was denied a pipeline permit by utility regulators in that state last month, will reapply after it identifies a new route that complies with county ordinances.

“Moving forward, we are committed to working with the counties in South Dakota to find a mutually agreeable path through each county,” said Sabrina Zenor, a spokesperson for the company. “This means working within ordinances regarding applicability of waivers, etc. and more dynamic conversations around routing.”

Summit applied for a permit to construct a carbon dioxide transmission pipeline in that state in February 2022. The South Dakota Public Utilities Commission denied the application about 19 months later in September, citing the route’s conflicts with ordinances in four counties.

Summit had asked the commission to overrule those ordinances but withdrew that request after the commission upheld the ordinances in regard to another pipeline proposal by Navigator CO2. That company has since suspended its negotiations for land easements in South Dakota and requested to suspend its permit process in Iowa.

Both companies have sought permission to build multistate pipeline systems to transport captured carbon dioxide from ethanol plants and other facilities. South Dakota is crucial for Summit’s proposal because it has eight of the 31 ethanol plants that would connect to Summit’s system and because it is a link between North Dakota and most of the remaining plants in Iowa, Minnesota and Nebraska. The company plans to sequester the greenhouse gas underground in North Dakota.

South Dakota law allows counties to adopt restrictions on the pipelines, but state regulators can overrule them if they are “unreasonably restrictive.”

The state has four counties — Brown, McPherson, Minnehaha and Spink — that have adopted ordinances that require the pipelines to be certain distances from residences, livestock facilities, nursing homes and other buildings. But they also have exceptions to those restrictions in some cases if county officials and landowners approve of them.

“We issue conditional use permits for lots of things that people don’t like,” said Scott Anderson, director of planning and zoning for Minnehaha County. “I don’t think it was the intent of the county commission to set up an ordinance to block anything. … It is a complicated situation with lots of people having strong emotions.”

Summit has begun discussions with Minnehaha and other counties to plot a new route. A company representative who spoke to county officials in Brown “basically said, ‘We’re starting at ground zero, we have to look at it like we don’t have a route,’” according to Scott Bader, planning and zoning director for Brown County.

Tracey Millar, zoning administrator for Spink County, said the company is seeking the county’s input on its route and has indicated it is moving the pipeline path farther away from people who oppose the project.

A Spink ordinance precludes the pipeline from being built within a half mile of a property line of a residence, but it can be built closer if the owner signs a waiver.

It’s unclear when Summit might reapply for a South Dakota permit.

“We plan to refile our application once we have a path through the state,” Zenor said.

State law requires the Public Utilities Commission to make a decision about permit requests within a year of the application. Summit’s first permit request took longer because the company sought a deadline extension for submitting its evidence and updating its application.

Company takes different approach in North Dakota

Summit has renewed its request with North Dakota utility regulators to nullify the effects of two county ordinances that restrict the placement of its proposed carbon dioxide pipeline.

The company recently filed the motion with that state’s Public Service Commission, which denied its permit request in August. At that time, the commission did not issue a ruling about the county ordinances because it was denying the permit for other reasons.

The commission has since agreed to reconsider the company’s permit request, and Summit wants a ruling on the ordinances before any further hearings are held for the reconsideration.

“This threshold issue will affect the evidence presented in the upcoming hearing by both (Summit) and intervenors, and thus a pre-hearing decision will save both the parties and the commission time and resources,” wrote Lawrence Bender, an attorney for Summit.

The company has argued that the Burleigh County and Emmons County ordinances are so restrictive that they prevent any possible pipeline route through them. It further points to part of state law that says: “Except as provided in this section, a permit for the construction of a gas or liquid transmission facility within a designated corridor supersedes and preempts any local land use or zoning regulations.”

Opponents of the pipeline route argue that other elements of the law — and the intent of legislators who adopted it — give counties a right to restrict the siting of pipelines. They also say Summit is exaggerating the effects of the ordinances.

It’s unclear when state regulators will rule on Summit’s request. They have not yet scheduled a new hearing to reconsider the company’s proposal, which is being modified to allay some of the concerns about the route.

Permit hearing continues in Iowa

An evidentiary hearing for Summit’s hazardous liquid pipeline permit request in Iowa began its seventh week on Tuesday with the Iowa Utilities Board.

Landowners who have declined to give Summit land easements to build its pipeline — and who are subject to eminent domain requests — testified about their concerns about the project. That included safety threats posed by pipeline ruptures, damage to farmland, potential inability to get liability insurance and other concerns.

Their testimony was scheduled to continue Wednesday and Thursday.

Also on Tuesday, the IUB granted Navigator’s request to suspend its permit proceedings. The company wants to pause its process in Iowa until Illinois utility regulators decide whether to approve the project in that state, which is where Navigator plans to sequester carbon dioxide.

The Sierra Club of Iowa resisted Navigator’s request to cancel a meeting next week to discuss the project. The IUB was poised to hold a scheduling conference to help determine a timeline for the remainder of the company’s permit process.

The Sierra Club argued the meeting should be used for a public update on the status of the project.

“The landowners impacted by Navigator’s project, the public, and for that matter, the board, deserve to know the facts surrounding the status of the Navigator project,” wrote Wally Taylor, a Sierra Club attorney. “There has been some indication that Navigator is dropping the portion of its proposed project in South Dakota, and even some portions of the project in northwest Iowa. But Navigator has been less than transparent about the situation.”

The IUB denied Taylor’s request for the meeting because it “would not provide substantive information.”