North Dakota Certificate of Site Compatibility (8-ND-a)
Certificate of Site Compatibility Process
8-ND-a.1 – Ten-Year Plan
Any developer that operates or plans to operate a transmission facility in the state must create and submit a ten-year plan to NDPSC. This plan must be updated and filed with NDPSC on or before July 1st of each even-numbered year after the initial submission. The ten-year plan can be jointly prepared with other utilities. The ten-year plan must contain the following information:
- A description of the general location, size, and type of all facilities to be owned or operated by the developer during the ensuing ten years, as well as those facilities to be removed from service during the ten-year period;
- The location of the preferred site for all transmission facilities that will be constructed in the ensuing five years;
- A description of efforts made by the developer to coordinate the plan with other utilities so as to provide a coordinated regional plan for meeting the utility needs of the region;
- A description of efforts made to involve environmental protection and land-use planning agencies in the planning process, as well as other efforts to identify and minimize environmental problems at the earliest possible stage in the planning process;
- A statement of the projected demand for the service rendered by the developer for the ensuing ten years and the underlying assumptions for the projection, and a description of the manner and extent to which the developer will meet the projected demands; and
- Any other relevant information as may be requested by NDPSC.
Upon receipt of the ten-year plan, NDSPC assesses the impact of the proposed project to ensure that transmission facilities will be sited in an orderly manner compatible with environmental preservation and an efficient use of resources.
8-ND-a.2 to 8-ND-a.3 – Does the Developer Request a Process Waiver?
A transmission developer may apply to NDPSC for a waiver of any of the procedures or times schedules associated with a obtaining a Certificate. After receiving a waiver application, NDPSC conducts a hearing with the developer. N.D.C.C. § 49-22-07.2.
If the developer seeks a waiver request, the developer must submit the request on the form prescribed by NDPSC. The developer must submit the original copy of the request along with ten (10) additional copies. The request must contain:
- A description of the type of facility addressed in the request, including the purpose and the technology to be employed;
- A description of the products to be produced or transmitted by the proposed facility;
- The capacity and design of the proposed facility;
- The location of the proposed facility and a map showing the location of the proposed facility;
- A description of the general area to be served by the facility;
- The anticipated time schedule for major events;
- Any plans for future expansion of the proposed facility;
- The need for the proposed facility based on the present and projected demand, including the most recent system studies supporting the analysis of the need;
- Any reasonable alternative methods of serving the need;
- Justification for any deviations from the developer's most recent ten-year plan that the proposed facility may present;
- The estimated total cost of construction of the facility;
- Any specific provisions of law that the developer requests NDPSC waive or modify, with a separate justification for each provision;
- The factual basis demonstrating that the proposed facility is of such length, design, location, or purpose that it will produce minimal adverse effects; and
- If the request is based on an emergency situation, the nature of the emergency justifying immediate authority.
Note: If only some of the standard procedures are waived by NDPSC, the developer must still complete all remaining procedures before a Certificate can be obtained.
8-ND-a.4 – Publish Notice of Waiver Request
After receiving a waiver request, NDPSC publishes a notice of opportunity for a public hearing in the official newspaper of each county in which any portion of the proposed project is located. N.D.C.C. § 49-22-13(2).
8-ND-a.5 – Does an Interested Person Request a Hearing ?
If an interested person wants to have a public hearing, that person must request NDPSC to hold a hearing and show good cause for doing so. N.D.C.C. § 49-22-13(2).
8-ND-a.6 – Provide Notice of Public Hearing
If NDPSC decides to hold a public hearing on the waiver request, NDPSC serves notice of the public hearing to persons and agencies NDPSC deems appropriate. NDPSC also publishes notice twice, once at least twenty (20) days before the hearing, and once less than twenty (20) days before the hearing. These notices are given at the expense of the developer. N.D.C.C. § 49-22-13(4).
Note: If the waiver is requested for emergency reasons, the twenty (20) day notice requirement may not apply.
8-ND-a.7 – Hold Public Hearing
A public hearing is held in each county in which any portion of the proposed project is located, unless NDPSC decides to consolidate the hearing to one or more of the counties affected. NDPSC cannot consolidate the hearings if five or more affected landowners of a particular county file a petition with NDPSC within ten (10) days of the notice publication.
At the public hearing, any person may present testimony or evidence relating to the information provided in the waiver application, and the factors NDPSC is required to consider when evaluating the waiver application.
8-ND-a.8 – Does NDPSC Grant the Waiver Request
After conducting the hearing, if necessary, NDPSC makes a waiver determination. NDPSC grants the waiver if it finds that either, there is an existing emergency, or if the proposed facility will have minimal adverse effect. If NDPSC grants a waiver, NDPSC may issue a Certificate with any conditions as NDPSC may require. N.D.C.C. § 49-22-07.2. The order issued also contains findings that support NDPSC’s decision. If the request is granted, the order also specifically describes the procedures and time schedules that are waived. N.D.A.C. § 69-06-06-02.
8-ND-a.9 – Certificate Application
If no waiver is requested, or the waiver request is denied, the developer should submit a Certificate Application (“Application”) with NDPSC. The developer must file the original Application along with ten copies of the Application to NDPSC. The Application must be submitted in a 8½” by 11” size. N.D.A.C. § 69-06-04-01. The Application must include the following information:
- A description of the size and type of the proposed facility;
- A summary of any studies that have been made on the environmental impact of the facility;
- A map of the study area showing the location of the proposed facility and the criteria evaluated;
- A statement explaining the need for the proposed facility, including an analysis of the need based on present and projected demand;
- The preferred location of the corridor for the transmission facility;
- A description of any feasible alternatives;
- A description of the merits and detriments of any location identified and a comprehensive analysis with supporting data showing the reasons why the preferred location is best suited for the facility;
- The qualifications of each person involved in the facility site/corridor location study;
- A discussion of the developer’s policies and commitments to limit the environmental impact of the facility;
- A description of mitigative measures that will be taken to minimize all foreseen adverse impacts resulting from the location, construction, and operation of the proposed facility;
- A discussion of present and future natural resource development in the area;
- An 8½” by 11” sized black and white map suitable for newspaper publication depicting the proposed project area;
- An evaluation of the proposed site or corridor with regard to the applicable considerations set out in N.D.C.C. § 49-22-09 and the criteria established pursuant to N.D.C.C. § 49-22-05.1; and
- Any other information the developer considers relevant or NDPSC requires.
The developer must also submit appropriate map and GIS data with the Application. This data must be submitted pursuant to and in accordance with N.D.A.C. § 69-06-04-01(2)(n).
8-ND-a.10 to 8-ND-a.11 – Review Application Materials for Completeness
After receiving an Application, NDPSC reviews the Application for administrative and technical completeness. If the Application is incomplete, NDPSC notifies the developer of the deficiencies. An Application is deemed complete when NDPSC determines the Application contains sufficient information and supporting documentation to enable NDPSC to process the Application. If the Application is complete, NDPSC notifies the developer in writing that the Application is complete. N.D.A.C. § 69-06-01-04(2).
8-ND-a.12 – Provide Notice of Application Filing
Once NDPSC determines that an Application is complete, NDPSC serves notice of the filing to persons and agencies NDPSC deems appropriate. NDPSC also publishes notice of the filing in the official newspaper of each county in which any portion of the project is proposed to be located. N.D.C.C. § 49-22-08(2). NDPSC must provide notice of the Application to the following:
- The chairman of the board of county commissioners of each county in which any part of the project is proposed to be located;
- The auditor of each county in which any part of the project is proposed to be located;
- The chief executive officer of each city within a proposed site for a transmission facility;
- The agencies and officers entitled to notice as designated in N.D.A.C. § 69-06-01-05; and
- The state senators and representatives of each legislative district in which any part of the project is proposed to be located.
NDPSC provides a copy of the Application to any person or agency who requests it within thirty (30) days of receiving notice via service or publication. N.D.C.C. § 49-22-08(3).
8-ND-a.13 – Provide Notice of Public Hearing
NDPSC must hold a public hearing on the Application. NDPSC serves notice of the public hearing to persons and agencies NDPSC deems appropriate. NDPSC must give at least twenty (20) days notice of the hearing by mail or electronic mail to the following:
- All parties;
- The chairman of the board of county commissioners in each county in which any part of the project is located;
- The county auditor in each county in which any part of the project is located;
- The chief executive officer of each city within the proposed project corridor;
- Any state or federal agency listed in N.D.A.C. § 69-06-01-05; and
- The state senators and representatives of each legislative district in which any part of the proposed project is located.
NDPSC also publishes notice twice, once at least twenty (20) days before the hearing, and once less than twenty (20) days before the hearing. These notices are given at the expense of the developer. N.D.C.C. § 49-22-13(4).
The notices include a map depicting the proposed corridor and study area. N.D.A.C. § 69-06-01-02(3).
8-ND-a.14 – Hold Public Hearing
NDPSC holds a public hearing in each county in which any portion of the proposed project is located, unless NDPSC decides to consolidate the hearing to one or more of the counties affected. NDPSC cannot consolidate the hearings if five or more affected landowners of a particular county file a petition with NDPSC within ten (10) days of the notice publication.
At the public hearing, any person may present testimony or evidence relating to the information provided in the Application, and the factors NDPSC is required to consider when evaluating the Application.
8-ND-a.15 to 8-ND-a.16 – Assess Application
After the public hearing, NDPSC assesses the proposal and makes a determination whether to grant a Certificate. When evaluating the proposal, NDPSC is guided by, but not limited to, the following considerations:
- Available research and investigations relating to the effects of the location, construction, and operation of the proposed facility on public health and welfare, natural resources, and the environment;
- The effects of new transmission technologies and systems designed to minimize adverse environmental effects;
- Adverse direct and indirect environmental effects which cannot be avoided should the proposed site or route be designated;
- Alternatives to the proposed site, corridor, or route which are developed during the hearing process and which minimize adverse effects;
- Irreversible and irretrievable commitments of natural resources should the proposed site, corridor, or route be designated;
- The direct and indirect economic impacts of the proposed facility;
- Existing plans of the state, local government, and private entities for other developments at or in the vicinity of the proposed site, corridor, or route;
- The effect of the proposed site or route on existing scenic areas, historic sites and structures, and paleontological or archaeological sites;
- The effect of the proposed site or route on areas which are unique because of biological wealth or because they are habitats for rare and endangered species; and
- Problems raised by federal agencies, other state agencies, and local entities.
8-ND-a.17 – Certificate of Site/Corridor Compatibility
If NDPSC approves the proposal, NDPSC issues a Certificate to the developer. The Certificate must contain NDPSC findings that the proposal, with modifications, if any, meets the site or corridor evaluation process requirements. The project must be constructed, operated, and maintained in conformity with the terms, conditions, or modifications of the Certificate. The Certificate may be transferred, subject to the approval of NDPSC, to any person who agrees to comply with its terms, conditions, and modifications. N.D.C.C. § 49-22-07; N.D.A.C. § 69-06-04-02.
The Certificate may be revoked or suspended for any of the following reasons:
- The developer provided a material false statement in the Application or required studies;
- The developer fails to comply with the Certificate’s terms, conditions or modifications;
- NDPSC violates a provision of N.D.C.C. § 49-22 or N.D.A.C. § 69-06-04; or
- A determination by a district court pursuant to N.D.C.C. § 49-22-16.1.
8-ND-a.18 – Appeal Decision
Any party aggrieved by the issuance of a Certificate from NDPSC may request a rehearing by NDPSC. The request must be filed within thirty (30) days of the decision, and NDPSC conducts the hearing pursuant to N.D.C.C. § 28-32. Any entity adversely affected by a NDPSC ruling has a right to appeal to the district court. N.D.C.C. § 49-22-19.
8-ND-a.19 – Initiate Route Permit Process
Within two (2) years after receiving a Certificate from NDPSC, the developer must file an application for a Route Permit. For more information see:
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- North Dakota – N.D. Century Code §§ 49-22 et seq., Energy Conversion and Transmission Facility Siting Act
- North Dakota – N.D. Century Code §§ 28-32 et seq., Administrative Agencies Practices Act
- North Dakota – N.D. Admin. Code §§ 69-06-01 et seq., General Provisions
- North Dakota – N.D. Admin. Code §§ 69-06-06 et seq., Waiver of Procedures and Time Schedules
- North Dakota – N.D. Admin. Code §§ 69-06-04 et seq., Certificate of Site Compatibility