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South Dakota State Environmental Review (9-SD-a)

Information current as of 2020
In South Dakota, a developer may need approval from the South Dakota Department of Environmental and Natural Resources (DENR) through a state environmental review to build a bulk transmission line. The DENR is the primary state agency that oversees the South Dakota Environmental Policy Act (SDEPA) review process. 34A-9 S.D. § 1 et seq. The SDEPA is similar to the National Environmental Policy Act (NEPA). SDEPA Memorandum, at p. 1. Like NEPA, the SDEPA is designed to facilitate informed decision-making and environmental review. SDEPA requires state agencies to study the environmental consequences of their actions, including permitting and financial assistance, and to take all feasible measures to avoid, minimize, and mitigate damage to the environment. SDEPA Memorandum, at p. 1.

State Environmental Review Process

9-SD-a.1 – Contact DENR

Developers should contact the South Dakota Department of Environmental and Natural Resources (DENR) in the early stages of the project planning so DENR can assist the developer align Federal and state environmental review processes, if applicable. SDEPA Memorandum, at p. 1.

9-SD-a.2 to 9-SD-a.3 – Does the Proposed Project Trigger SDEPA?

A project that meets any of the thresholds below is subject to environmental review pursuant to the South Dakota Environmental Policy Act:

  • Any new or continuing project or activity directly undertaken by any public agency, or supported in whole or part through contracts, grants, subsides, loans, or other forms of funding assistance from one or more public agencies; or
  • The issuance by one or more public agencies of a lease, permit, license, certificate or other public entitlement to an applicant (developer).

34A-9 S.D., § 2.

If the project does not meet one of the thresholds, the developer may continue with the project.

9-SD-a.4 to 9-SD-a.5 – Has the Proposed Project Undergone Federal NEPA Review?

If the proposed project has undergone a federal NEPA review and the applicable agency has issued a detailed environmental impact statement as required by NEPA, the project is exempt from the state environmental review process. 34A-9 S.D., § 11.

9-SD-a.6 – Conduct Scoping Meeting(s)

Prior to the environmental review and the preparation of an Environmental Impact Statement (EIS), DENR or another relevant agency must conduct one or more scoping meeting to solicit public input regarding the proposed project’s environmental impacts from the county residences in which the proposed action is to be located. 34A-9 S.D., § 6.

9-SD-a.7 – Draft Environmental Impact Statement (DEIS)

As early as possible DENR or another relevant state agency may prepare or have prepared a Draft Environmental Impact Statement (DEIS) describing in detail the proposed action and reasonable alternatives to the action. The DEIS should also briefly discuss, on the basis of information available to the agency at that time, the information required to be included in the final environmental impact statement. 34A-9 S.D., § 5; 34A-9 S.D., § 7. The DEIS should be prepared in accordance with the procedural requirements relating to citizen participation of the National Environmental Policy Act and related implementing regulations. 34A-9 S.D., §§ 5, 7. The purpose of the DEIS is to “inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency in determining the environmental consequences of the proposed action.” 34A-9 S.D., § 6.

The DEIS should resemble in form and content the EIS to be prepared after DENR receives and considers public comments on the proposed project. 34A-9 S.D., § 6. The DEIS, at minimum, should include a detailed statement setting forth the following:

  • A description of the proposed action and its environmental setting;
  • The environmental impact of the proposed action, including short-term and long-term effects;
  • Any adverse environmental effects that cannot be avoided if the proposal is implemented;
  • Alternatives to the proposed action;
  • Any irreversible and irretrievable commitments of resources that would be involved in the proposed action if implemented;
  • Mitigation measures proposed to minimize the environmental impact; and
  • The growth-inducing aspects of the proposed action.

34A-9 S.D., § 7.

9-SD-a.8 to 9-SD-a.9 – Circulate DEIS for Public Comment

DENR and the developer must circulate the DEIS for comment among other relevant public agencies for review. In addition, DENR and the developer must make the DEIS available for comment by relevant federal agencies and interested members of the public. 34A-9 S.D., § 8.

9-SD-a.10 – Hold Public Hearing/Meeting (If Applicable)

DENR or the appropriate state agency should hold one or more public hearing and/or meeting regarding the DEIS of the proposed project, if necessary. 34A-9 S.D., § 8. South Dakota requires the DENR or the appropriate state agency to prepare a state Environmental Impact Statement (EIS) in accordance with the procedural requirements relating to citizen participation of the National Environmental Policy Act and related implementing regulations. 34A-9 S.D., § 7; 40 C.F.R. § 1502.14.

9-SD-a.11 – Compose Environmental Impact Statement (EIS)

DENR should compose the EIS after reviewing and considering the comments provided regarding the DEIS. The DENR or applicable state agency must analyze the full range of direct, indirect, and cumulative effects of the preferred alternative, if any, and of the reasonable alternative identified in the DEIS. 34A-9 S.D., § 7.

9-SD-a.12 – File Final EIS

The DENR must file the EIS prepared pursuant to 34A-9 S.D., § 4, together with the comments of public and federal agencies and members of the public with the Office of the Secretary. 34A-9 S.D., § 9. The EIS must include copies or a summary of the substantive comments received by the agency pursuant to 34A-9 S.D., § 8 and the agency response to such comments. 34A-9 S.D., § 9.

9-SD-a.13 – Final EIS

DENR must make the EIS available to the public at least 30 days prior to taking agency action on the proposed project. 34A-9 S.D., § 9.

9-SD-a.14 –Compliance Finding

When DENR or the applicable agency decides to carry out or approve an action subject to an EIS, the agency must make an explicit finding that they have complied with the requirements of SDEPA and that the agency will take all feasible actions necessary to minimize and avoid environmental problems that were revealed in the EIS process. 34A-9 S.D., § 10.

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