By Dave Baumeister, County Correspondent
SIOUX FALLS – “Forgiving liens, declaring nuisances, discussing zoning permits; we’re just firing on all cylinders today!” commented Minnehaha County Commission Chair Dean Karsky about their three-hour meeting on Tuesday, Dec. 21.
Commissioners met to discuss several matters, as Karsky said, but much of the time was taken up with one issue that ended up being deferred until “next year.”
The matter in question was for a 120-by 200-foot natural gas “injector station” to be built near the intersection of 473rd Ave. and 249th St., approximately three-quarters of a mile northeast of Baltic.
In their last meeting, the county planning and zoning commission unanimously approved a conditional use permit for the gas facility.
The station would collect captured methane emissions from three area dairies and combine them with the existing natural gas pipes which run through that area.
The methane-capture system is part of technology form the partnership of Northern Natural Gas and Brightmark Renewable Energies, which converts manure into renewable natural gas.
Jason Sutton an attorney with Boyce Law Firm in Sioux Falls, called the process “cutting-edge technology” that would capture and transport methane that could heat 7,000 homes.
It was also said that the number 7,000 represents more homes than Minnehaha County had areas outside of incorporated municipalities.
The appeal to not allow the conditional use permit came from David and Nicole Wirkus, whose property is near the proposed injector station.
However, as explained, and as part of conditions put on the companies by the planning commission, the station would be built up to be out of the Big Sioux River flood plain, it would have a privacy fence constructed around it, and there would be trees and shrubs around that.
Their engineers estimate the noise level at the fence to be at 70 dBs (about the noise level of a vacuum cleaner).
The home of the Wirkus family was said to be 500 feet away, so the noise level would be almost non-existent at that point.
Nicole Wirkus also brought up a safety issue, but the attorneys for the proponents countered that by saying the current pipes for Northern Natural Gas have run under the Wirkus’ property since 1961, and the same safety concerns would apply to them.
Reece Almond, an attorney with Davenport and Evans in Sioux Falls, who represents the Wirkus family, brought up a legal issue that he said applied.
Although the legal issue he mentioned had never been brought to anyone’s attention prior to the Dec. 21 meeting, he elaborated that according to the Minnehaha County Zoning Ordinance, a “public utility” can apply for a conditional use permit, but he cited a brief written by Northern Natural Gas saying they were not a public utility, and therefore had no standing to file for the permit in the first place.
Although, in rebuttal, Sutton, who wrote the brief Almond referenced, said that the complete text referred to the fact that Northern Natural gas was not a “South Dakota public utility” subject to the South Dakota Public Utilities Commission.
Instead, as an interstate company, they are a public utility subject to the Federal Regulatory Commission. He explained the purpose behind that brief was to show that a utilities commission in one state should not be able to shut down a project in another state.
The zoning ordinance that Almond referred to does not specially state a “South Dakota public utility.”
After that testimony, the commissioners took over making their opinions known, and it was clear the four of them were going to vote to uphold the Planning and Zoning Commission’s decision. (Commissioner Jean Bender recused herself, as she is an attorney with Davenport and Evans).
But before a vote could be taken, Commission Administrator Carol Muller brought a note up to Karsky, who immediately called for the members to go into executive session.
It was reported that the note originated with Deputy State’s Attorney Eric Bogue. And while its nature was unknown, for what happened after the 10-minute executive session, it was believed the commission wanted to take time to go over the possible legal issues Almond was claiming.
After almost an hour of discussion, commissioners then voted to defer the issue to their Jan. 4 meeting, as Barth wouldn’t be present on Dec. 28, and they need at least four commissioners to vote on a zoning matter.
At their next meeting, commissioners will finish up any left-over business for 2021, before re-organizing at the Jan. 4, 2022 meeting.
