2016 North Dakota Century Code Title 49 Public Utilities Chapter 49-22 Energy Conversion and Transmission Facility Siting Act
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CHAPTER 49-22
ENERGY CONVERSION AND TRANSMISSION FACILITY SITING ACT
49-22-01. Short title.
This chapter may be cited as the "North Dakota Energy Conversion and Transmission
Facility Siting Act".
49-22-02. Statement of policy.
The legislative assembly finds that the construction of energy conversion facilities and
transmission facilities affects the environment and the welfare of the citizens of this state.
Therefore, it is necessary to ensure that the location, construction, and operation of energy
conversion facilities and transmission facilities will produce minimal adverse effects on the
environment and upon the welfare of the citizens of this state by providing that no energy
conversion facility or transmission facility shall be located, constructed, and operated within this
state without a certificate of site compatibility or a route permit acquired pursuant to this chapter.
The legislative assembly hereby declares it to be the policy of this state to site energy
conversion facilities and to route transmission facilities in an orderly manner compatible with
environmental preservation and the efficient use of resources. In accordance with this policy,
sites and routes shall be chosen which minimize adverse human and environmental impact
while ensuring continuing system reliability and integrity and ensuring that energy needs are
met and fulfilled in an orderly and timely fashion.
49-22-03. Definitions.
In this chapter, unless the context or subject matter otherwise requires:
1. "Certificate" means the certificate of site compatibility or the certificate of corridor
compatibility issued under this chapter.
2. "Commission" means the North Dakota public service commission.
3. "Construction" includes any clearing of land, excavation, or other action that would
affect the environment of the site after April 9, 1975, but does not include activities:
a. Conducted wholly within the geographic location for which a utility has previously
obtained a certificate or permit under this chapter, or on which a facility was
constructed before April 9, 1975, if:
(1) The activities are for the construction of the same type of facility as the
existing type of facility as identified in a subdivision of subsections 5 or 12 of
this section and the activities are:
(a) Within the geographic boundaries of a previously issued certificate or
permit;
(b) For an energy conversion facility constructed before April 9, 1975,
within the geographic location on which the facility was built; or
(c) For a transmission facility constructed before April 9, 1975, within a
width of three hundred fifty feet [106.68 meters] on either side of the
centerline;
(2) Except as provided in subdivision b, the activities do not affect any known
exclusion or avoidance area;
(3) The activities are for the construction:
(a) Of a new energy conversion facility;
(b) Of a new gas, liquid, or electric transmission facility;
(c) To improve the existing energy conversion facility or gas, liquid, or
electric transmission facility; or
(d) To increase or decrease the capacity of the existing energy conversion
facility or gas, liquid, or electric transmission facility; and
(4) Before conducting any activities, the utility certifies in writing to the
commission that:
(a) The activities will not affect any known exclusion or avoidance area;
(b) The activities are for the construction:
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Of a new energy conversion facility;
Of a new gas, liquid, or electric transmission facility;
To improve the existing energy conversion or gas, liquid, or
electric transmission facility; or
[4] To increase or decrease the capacity of the existing energy
conversion facility or gas, liquid, or electric transmission facility;
and
(c) The utility will comply with all applicable conditions and protections in
siting laws and rules and commission orders previously issued for any
part of the facility.
b. Otherwise qualifying for exclusion under subdivision a, except that the activities
are expected to affect a known avoidance area and the utility before conducting
any activities:
(1) Certifies in writing to the commission that:
(a) The activities will not affect any known exclusion area;
(b) The activities are for the construction:
[1] Of a new energy conversion facility;
[2] Of a new gas, liquid, or electric transmission facility;
[3] To improve the existing energy conversion facility or gas, liquid,
or electric transmission facility; or
[4] To increase or decrease the capacity of the existing energy
conversion facility or gas, liquid, or electric transmission facility;
and
(c) The utility will comply with all applicable conditions and protections in
siting laws and rules and commission orders previously issued for any
part of the facility;
(2) Notifies the commission in writing that the activities are expected to impact
an avoidance area and provides information on the specific avoidance area
expected to be impacted and the reasons why impact cannot be avoided;
and
(3) Receives the commission's written approval for the impact to the avoidance
area, based on a determination that there is no reasonable alternative to the
expected impact. If the commission does not approve impacting the
avoidance area, the utility must obtain siting authority under this chapter for
the affected portion of the site or route. If the commission fails to act on the
notification required by this subdivision within thirty days of the utility's filing
the notification, the impact to the avoidance area is deemed approved.
c. Incident to preliminary engineering or environmental studies.
"Corridor" means the area of land in which a designated route may be established for
a transmission facility.
"Energy conversion facility" means any plant, addition, or combination of plant and
addition, designed for or capable of:
a. Generation by wind energy conversion exceeding one-half megawatt of
electricity;
b. Generation by any means other than wind energy conversion exceeding fifty
megawatts of electricity;
c. Manufacture or refinement of one hundred million cubic feet [2831684.66 cubic
meters] or more of gas per day, regardless of the end use of the gas;
d. Manufacture or refinement of fifty thousand barrels [7949.36 cubic meters] or
more of liquid hydrocarbon products per day; or
e. Enrichment of uranium minerals.
"Facility" means an energy conversion facility, transmission facility, or both.
"Permit" means the permit for the construction of a transmission facility within a
designated corridor issued under this chapter.
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"Person" includes any individual, firm, association, partnership, cooperative,
corporation, limited liability company, or any department, agency, or instrumentality of
a state or of the federal government, or any subdivision thereof.
"Power emergency" means an electric transmission line and associated facilities that
have been damaged or destroyed by natural or manmade causes resulting in a loss of
power supply to consumers of the power.
"Route" means the location of a transmission facility within a designated corridor.
"Site" means the location of an energy conversion facility.
"Transmission facility" means any of the following:
a. An electric transmission line and associated facilities with a design in excess of
one hundred fifteen kilovolts. "Transmission facility" does not include:
(1) A temporary transmission line loop that is:
(a) Connected and adjacent to an existing transmission facility that was
sited under this chapter;
(b) Within the corridor of the sited facility and does not cross known
exclusion or avoidance areas; and
(c) In place for less than one year; or
(2) A transmission line that is less than one mile [1.61 kilometers] long.
b. A gas or liquid transmission line and associated facilities designed for or capable
of transporting coal, gas, liquid hydrocarbons, liquid hydrocarbon products, or
carbon dioxide. This subdivision does not apply to:
(1) An oil or gas pipeline gathering system;
(2) A pipeline with an outside diameter of four and one-half inches [11.43
centimeters] or less that will not be trenched and will be plowed in with a
power mechanism having a vertical knife or horizontally directionally drilled,
and its associated facilities; or
(3) A pipeline that is less than one mile [1.61 kilometers] long.
For purposes of this chapter, a gathering system includes the pipelines and
associated facilities used to collect oil from the lease site to the first pipeline
storage site where pressure is increased for further transport, or pipelines and
associated facilities used to collect gas from the well to the gas processing facility
at which end-use consumer-quality gas is produced, with or without the addition
of odorant.
c. A liquid transmission line and associated facilities designed for or capable of
transporting water from or to an energy conversion facility.
"Utility" means any person engaged in and controlling the generation, manufacture,
refinement, or transmission of electric energy, gas, liquid hydrocarbons, or liquid
hydrocarbon products, including electric power generation or transmission, coal
gasification, coal liquefaction, petroleum refinement, uranium enrichment, and the
transmission of coal, gas, liquid hydrocarbons, or liquid hydrocarbon products, or the
transmission of water from or to any energy conversion facility.
49-22-04. Ten-year plans - Contents.
Each utility that owns or operates, or plans within the next ten years to own, operate, or
start construction on any facility shall develop a ten-year plan as specified in this section and
submit the plan to the commission. Each utility shall file an updated plan on or before July first
of each even-numbered year after the year of its initial submission. The ten-year plan may be
appropriate portions of a single regional plan or may be jointly prepared and submitted by two or
more utilities and must contain the following information:
1. A description of the general location, size, and type of all facilities to be owned or
operated by the utility during the ensuing ten years, as well as those facilities to be
removed from service during the ten-year period.
2. An identification of the location of the tentative preferred site for all energy conversion
facilities and the tentative location of all transmission facilities on which construction is
intended to be commenced within the ensuing five years and such other information as
may be required by the commission. The site and corridor identification shall be made
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in compliance with the criteria published by the commission pursuant to section
49-22-05.1.
A description of the efforts by the utility 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 the efforts 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 utility for the
ensuing ten years and the underlying assumptions for the projection, with that
information being as geographically specific as possible, and a description of the
manner and extent to which the utility will meet the projected demands.
Any other relevant information as may be requested by the commission. Upon receipt
of the ten-year plans the commission shall proceed to assess the impact of the
development proposed within the state to ensure that energy conversion facilities and
transmission facilities will be sited in an orderly manner compatible with environmental
preservation and efficient use of resources.
49-22-05. Inventory of potential sites - Criteria - Public hearings.
Repealed by S.L. 1977, ch. 447, § 16.
49-22-05.1. Exclusion and avoidance areas - Criteria.
The commission shall develop criteria to be used in identifying exclusion and avoidance
areas and to guide the site, corridor, and route suitability evaluation and designation process.
Except for transmission lines in existence before July 1, 1983, areas within five hundred feet
[152.4 meters] of an inhabited rural residence must be designated avoidance areas. This
criterion does not apply to a water pipeline. The five hundred foot [152.4 meter] avoidance area
criteria for an inhabited rural residence may be waived by the owner of the inhabited rural
residence in writing. The criteria may also include an identification of impacts and policies or
practices which may be considered in the evaluation and designation process.
49-22-06. Facility development plans.
Repealed by S.L. 1977, ch. 447, § 16.
49-22-07. Certificate of site compatibility or route permit required.
1. A utility may not begin construction of an energy conversion facility or transmission
facility in the state without first having obtained a certificate of site compatibility or a
route permit from the commission pursuant to this chapter. The facility must be
constructed, operated, and maintained in conformity with the certificate or permit and
any terms, conditions, or modifications of the certificate or permit. A certificate or
permit may be transferred, subject to the approval of the commission, to any person
who agrees to comply with its terms, conditions, and modifications.
2. If a power emergency exists which necessitates the relocation of a portion of an
electric transmission line and associated facilities from the designated route, the owner
of the line shall give telephonic notice to the commission in advance of the relocation.
The line may then be relocated to restore power as soon as practicable. After the line
has been relocated, the owner shall file with the commission a request to approve the
relocated route.
49-22-07.1. Letter of intent prior to construction.
Repealed by S.L. 2013, ch. 365, § 3.
49-22-07.2. Waiver of procedures and time schedules.
Any utility which proposes to construct an energy conversion facility or a transmission
facility within the state may make an application to the commission for a waiver of any of the
procedures or time schedules set forth in this chapter or in the rules adopted pursuant to this
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chapter. The commission, after hearing and upon a finding that the proposed facility is of such
length, design, location, or purpose that it will produce minimal adverse effects, or, after hearing
and upon a finding that a demonstrable emergency exists which requires immediate
construction and that adherence to the procedures and time schedules would jeopardize the
utility's system, may issue an order waiving specified procedures and time schedules required
by this chapter or by the rules adopted pursuant to this chapter, including, but not limited to,
applications, notices, and hearings, and may forthwith issue a certificate of site compatibility, a
certificate of corridor compatibility, or a route permit, with such conditions as the commission
may require.
49-22-08. Application for a certificate - Notice of filing - Amendment - Designation of a
site or corridor.
1. An application for a certificate shall be in such form as the commission may prescribe,
containing the following information:
a. A description of the size and type of facility.
b. A summary of any studies which have been made of the environmental impact of
the facility.
c. A statement explaining the need for the facility.
d. An identification of the location of the preferred site for any energy conversion
facility.
e. An identification of the location of the preferred corridor for any transmission
facility.
f. 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.
g. 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.
h. An evaluation of the proposed site or corridor with regard to the applicable
considerations set out in section 49-22-09 and the criteria established pursuant to
section 49-22-05.1.
i. Such other information as the applicant may consider relevant or the commission
may require.
2. After determining that the application is complete, the commission shall serve a notice
of filing of the application on such persons and agencies that the commission may
deem appropriate and shall publish a notice of filing of the application in the official
newspaper of each county in which any portion of the site or corridor is proposed to be
located.
3. A copy of the application shall be furnished to any person or agency, upon request to
the commission within thirty days of either service or publication of the notice of filing.
4. An application for an amendment of a certificate shall be in such form and contain
such information as the commission shall prescribe.
5. The commission may designate a site or corridor for a proposed facility following the
study and hearings provided for in this chapter. Any designation shall be made in
accordance with the evidence presented at the hearings, an evaluation of the
information provided in the application, the criteria established pursuant to section
49-22-05.1, and the considerations set out in section 49-22-09 in a finding with
reasons for the designation, and shall be made in a timely manner no later than six
months after the filing of a completed application for a certificate of site compatibility or
no later than three months after the filing of a completed application for a certificate of
corridor compatibility. The time for designation of a site or corridor may be extended by
the commission for just cause. The failure of the commission to act within the time
limits provided in this section shall not operate to divest the commission of jurisdiction
in any certification proceeding. The commission shall indicate the reasons for any
refusal of designation. Upon designation of a site or corridor, the commission shall
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issue a certificate of site compatibility or a certificate of corridor compatibility with such
terms, conditions, or modifications deemed necessary.
49-22-08.1. Application for a permit - Notice of filing - Amendment - Designation of a
route.
1. An application for a route permit for a transmission facility within a designated corridor
shall be filed no later than two years after the issuance of the certificate and shall be in
such form as the commission may prescribe, containing the following information:
a. A description of the type, size, and design of the proposed facility.
b. A description of the location of the proposed facility.
c. An evaluation of the proposed route with regard to the applicable considerations
set out in section 49-22-09 and the criteria established pursuant to section
49-22-05.1.
d. 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.
e. A description of the right-of-way preparation and construction and reclamation
procedures.
f. A statement setting forth the manner in which:
(1) The utility will inform affected landowners of easement acquisition, and
necessary easement conditions and restrictions.
(2) The utility will compensate landowners for easements, without reference to
the actual consideration to be paid.
g. Such other information as the utility may consider relevant or the commission
may require.
2. After determining that the application is complete, the commission shall serve a notice
of filing of the application on such persons and agencies that the commission may
deem appropriate and shall publish a notice of filing of the application in the official
newspaper of each county in which any portion of the designated corridor is located.
3. A copy of the application shall be furnished to any person or agency, upon request to
the commission within thirty days of either service or publication of the notice of filing.
4. An application for an amendment of a permit shall be in such form and contain such
information as the commission shall prescribe.
5. The commission shall designate a route for the construction of a transmission facility
following the study and hearings provided for in this chapter. This designation shall be
made in accordance with the evidence presented at the hearings, an evaluation of the
information provided in the application, the criteria established pursuant to section
49-22-05.1, and the considerations set out in section 49-22-09 in a finding with
reasons for the designation, and shall be made in a timely manner no later than six
months after the filing of a completed application. The time for designation of a route
may be extended by the commission for just cause. The failure of the commission to
act within the time limit provided in this section shall not operate to divest the
commission of jurisdiction in any permit proceeding. Upon designation of a route the
commission shall issue a permit to the applicant with such terms, conditions, or
modifications deemed necessary.
49-22-09. Factors to be considered in evaluating applications and designation of
sites, corridors, and routes.
The commission shall be guided by, but is not limited to, the following considerations, where
applicable, to aid the evaluation and designation of sites, corridors, and routes:
1. 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.
2. The effects of new energy conversion and transmission technologies and systems
designed to minimize adverse environmental effects.
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The potential for beneficial uses of waste energy from a proposed energy conversion
facility.
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.
Problems raised by federal agencies, other state agencies, and local entities.
49-22-09.1. Approval of hydroelectric transmission facilities by legislative assembly
required.
After compliance with the applicable requirements of this chapter, any hydroelectric
transmission facility that transmits hydroelectric power produced outside the United States, and
which crosses any portion of this state, must have the approval of the legislative assembly by
concurrent resolution. A person may not begin construction of a hydroelectric transmission
facility in this state that transmits hydroelectric power produced outside the United States, or
exercise the right of eminent domain in connection with such construction, without first having
complied with this chapter and obtained the approval of the legislative assembly. This section
shall not apply to any transmission facility for which a route permit and certificate of corridor
compatibility has been issued prior to July 1, 1985, or any extension thereof issued after July 1,
1985.
49-22-10. Designation of sites and corridors.
Repealed by S.L. 1979, ch. 504, § 15.
49-22-11. Approval of a specific transmission facility route within a designated
corridor.
Repealed by S.L. 1979, ch. 504, § 15.
49-22-12. Emergency certification.
Repealed by S.L. 1977, ch. 447, § 16.
49-22-12.1. Emergency certification.
Repealed by S.L. 1979, ch. 504, § 15.
49-22-13. Public hearings - Notice.
1. The commission shall hold a public hearing in each county in which any portion of a
site, corridor, or route is proposed to be located in an application for a certificate or a
permit. At the public hearing, any person may present testimony or evidence relating to
the information provided in the application, the criteria developed pursuant to section
49-22-05.1, and the factors to be considered pursuant to section 49-22-09. When
more than one county is involved, the commission may hold a consolidated hearing in
one or more of the affected counties. A hearing for any county shall not be
consolidated if five or more affected landowners in such county file a petition with the
commission within ten days of the publication of the notice of hearing.
2. The commission shall not be required to hold a public hearing on an application for the
transfer of a certificate or a permit, or an application for a waiver of procedures and
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time schedules, but shall publish a notice of opportunity for a public hearing in the
official newspaper of each county in which any portion of the facility or the proposed
site, corridor, or route is located. If requested by any interested person and good
cause has been shown therefor, the commission shall hold a public hearing. Where
more than one county is involved, the commission may hold a consolidated hearing in
one or more of the affected counties.
One or more public hearings shall be held at a location or locations determined by the
commission concerning the following matters:
a. A substantial or material change in the criteria established pursuant to section
49-22-05.1.
b. A substantial or material change in the rules adopted pursuant to section
49-22-18.
c. The revocation or suspension of a certificate or permit.
Notice of a public hearing shall be given by the commission by service on such
persons and agencies that the commission may deem appropriate and twice by
publication, once at least twenty days prior to such hearing and a second time within
twenty days prior to such hearing. Notice of a public hearing and notice of opportunity
for a public hearing on an application for a certificate, a permit, a transfer, or a waiver
shall be given at the expense of the applicant. In an emergency the commission, in its
discretion, may notice a hearing upon less than twenty days.
49-22-14. Advisory committees - Appointment - Compensation.
The commission may appoint one or more advisory committees to assist it in carrying out its
duties under this chapter. Committees appointed to evaluate sites or corridors considered for
designation shall be composed of as many persons as may be appointed by the commission,
but shall include a majority of public representatives; at least one representative from the state
department of agriculture, a public or municipally owned utility, a private investor-owned utility,
and a cooperatively owned utility; and one representative from each county and city in which an
energy conversion facility or transmission facility is proposed to be located. Members of
advisory committees shall be reimbursed, within the limits of legislative appropriations, for any
necessary expenses in the amounts provided by law for state officials.
49-22-14.1. Cooperation with state and federal agencies.
The commission may, and is encouraged to, cooperate with and receive and exchange
technical information and assistance from and with any department, agency, or officer of any
state or of the federal government to eliminate duplication of effort, to establish a common
database, or for any other purpose relating to the provisions of this chapter and in furtherance of
the statement of policy contained herein.
49-22-15. Public participation - Meetings - Records.
Repealed by S.L. 1979, ch. 504, § 15.
49-22-16. Effect of issuance of certificate or permit - Local land use, zoning, or
building rules, regulations, or ordinances - State agency rules.
1. The issuance of a certificate of site compatibility or a route permit shall, subject to
subsections 2 and 3, be the sole site or route approval required to be obtained by the
utility.
2. A certificate of site compatibility for an energy conversion facility shall not supersede or
pre-empt any local land use, zoning, or building rules, regulations, or ordinances and
no site shall be designated which violates local land use, zoning, or building rules,
regulations, or ordinances. A permit for the construction of a transmission facility within
a designated corridor may supersede and pre-empt any local land use, zoning, or
building rules, regulations, or ordinances upon a finding by the commission that such
rules, regulations, or ordinances, as applied to the proposed route, are unreasonably
restrictive in view of existing technology, factors of cost or economics, or needs of
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consumers regardless of their location. Without such a finding by the commission, no
route shall be designated which violates local land use, zoning, or building rules,
regulations, or ordinances.
Utilities subject to this chapter shall obtain state permits that may be required to
construct and operate energy conversion facilities and transmission facilities. A state
agency in processing a utility's facility permit application shall be bound to the
decisions of the commission with respect to the site designation for the energy
conversion facility or the corridor or route designation for the transmission facility and
with respect to other matters for which authority has been granted to the commission
by this chapter.
No site or route shall be designated which violates the rules of any state agency. A
state agency with jurisdiction over any aspect of a proposed facility shall present the
position of the agency at the public hearing on an application for a certificate, a permit,
or a waiver, which position shall clearly state whether the site, corridor, or route being
considered for designation will be in compliance with such agency's rules. For
purposes of this chapter it shall be presumed that a proposed facility will be in
compliance with a state agency's rules if such agency fails to present its position on
the proposed site, corridor, or route at the appropriate public hearing.
49-22-16.1. Unfair tactics in acquiring land or easements for a facility - Court action Cancellation of easement - Penalty.
1. Any person employed by a public utility to acquire easements for a facility subject to
this chapter shall not use any harassment, threat, intimidation, misrepresentation,
deception, fraud, or other unfair tactics to induce the owner of the land to be affected
by the facility to grant or agree to any easements.
2. If at least five landowners aggrieved by the conduct of a person or persons, acting on
behalf of the same utility, acquiring easements for a site or route of a facility allege use
of harassment, threat, intimidation, misrepresentation, deception, fraud, or other unfair
tactics by the person or persons acquiring or attempting to acquire the easement, an
action may be brought in the appropriate district court.
3. Upon a determination by the court that the person or persons employed by the utility
used harassment, threat, intimidation, misrepresentation, deception, fraud, or other
unfair tactics in acquiring or attempting to acquire an easement from at least five
separate landowners, the court shall, by order, declare the easements void and may
order any compensation paid therefor returned to the offending utility, or allow the
landowner to retain such compensation, or award to the landowner up to three times
the amount of the compensation involved as damages, punitive or compensatory. The
court shall award costs and reasonable attorney's fees to the plaintiffs when the court
rules in favor of the plaintiffs.
4. Upon a determination by the court that the utility involved did knowingly allow,
encourage, or operate in active consort or participation with such person or persons
utilizing such unfair tactic, the court shall cause a copy of its memorandum opinion or
order to be filed with the commission.
5. Upon receiving a copy of a memorandum opinion or order issued by a district court
pursuant to this section, the commission may revoke or suspend the permit issued
with respect to the route affecting the aggrieved landowners. If a permit has not been
issued with respect to a site or route affecting the aggrieved landowners, the
commission may refuse to issue a permit for such portion of the route.
49-22-16.2. Easements for a facility - Terms.
Any easement for an electric transmission facility as defined in this chapter acquired
contractually by a utility after July 1, 1979, shall give the landowner the option of receiving a
single sum payment for the easement or receiving payment in annual installments of equal
amounts including interest on the outstanding balance to be paid by the utility at a rate equal to
the average rate paid during that year by the Bank of North Dakota on a certificate of deposit in
an amount equal to the outstanding balance. The first annual installments shall be prorated to
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July first and all following annual installments shall fall due on July first. The option provided
herein shall not apply to any easement providing for compensation of less than five thousand
dollars. In the event the landowner elects to receive the compensation in annual payments, the
benefits unpaid at the time of sale of the real estate to which the easement attaches shall
accrue to the purchaser of said real estate thereafter. The utility right-of-way agent shall inform
the property owner of the owner's option to choose annual installments.
49-22-16.3. Route adjustment before or during construction for gas or liquid
transmission line.
1. Before or during construction, a utility, without any action by the commission, may
adjust the route of a gas or liquid transmission line within the designated corridor if,
before conducting any construction activities associated with the adjustment, the utility
files with the commission certification and supporting documentation that:
a. The construction activities will be within the designated corridor;
b. The construction activities will not affect any known exclusion or avoidance areas
within the designated corridor; and
c. The utility will comply with the commission's order, laws, and rules designating
the corridor and designating the route.
2. Before or during construction, a utility may adjust the route of a gas or liquid
transmission line within the designated corridor that may affect an avoidance area if,
before conducting any construction activities associated with the adjustment, the utility:
a. Files with the commission certification and supporting documentation that:
(1) The construction activities are within the designated corridor;
(2) The construction activities will not affect any known exclusion areas within
the designated corridor;
(3) The construction activities are expected to impact an avoidance area with a
specific description of the avoidance area expected to be impacted;
(4) Each owner of real property on which the adjustment is to be located and
any applicable governmental entity with an interest in the same adjustment
area do not oppose the adjustment, unless the utility previously received
authorization from the commission for the impact to the avoidance area;
(5) For an impact for which the utility does not already have approval or has not
filed the approval in paragraph 4, the utility has good cause and a specific
reason to impact the avoidance area, and a reasonable alternative does not
exist; and
(6) The utility will comply with the commission's order, laws, and rules
designating the corridor and designating the route.
b. Receives the commission's written authorization that the utility may impact the
avoidance area. If the commission does not authorize the impact to the
avoidance area, the utility must obtain siting authority for the affected portion of
the route adjustment. If the commission fails to act within ten working days of
receipt of the utility's filing of the certification and supporting documentation under
subdivision a of subsection 2, the route adjustment is deemed approved.
3. Before or during construction, a utility, without any action by the commission, may
adjust the route of a gas or liquid transmission line outside the designated corridor if,
before conducting any construction activities associated with the adjustment, the utility:
a. Files with the commission certification and supporting documentation that:
(1) The construction activities will not affect any known exclusion or avoidance
areas;
(2) The route outside the corridor is no longer than one and one-half miles [2.41
kilometers];
(3) The utility will comply with the commission's order, laws, and rules
designating the corridor and designating the route; and
(4) Each owner of real property on which the adjustment is to be located and
any applicable governmental entity with an interest in the same adjustment
area do not oppose the adjustment.
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b.
4.
5.
Files detailed field studies indicating exclusion and avoidance areas for an area
encompassing the route outside the designated corridor equal to the length of the
adjustment of the proposed corridor.
Before or during construction, a utility may adjust the route of a gas or liquid
transmission line outside the designated corridor that may affect an avoidance area if,
before conducting any construction activities associated with the adjustment, the utility:
a. Files with the commission certification and supporting documentation that:
(1) The construction activities will not affect any known exclusion areas;
(2) The construction activities are expected to impact an avoidance area with a
specific description of the avoidance area expected to be impacted;
(3) The utility has good cause and a specific reason to impact the avoidance
area, and a reasonable alternative does not exist;
(4) The route outside the corridor is no longer than one and one-half miles [2.41
kilometers];
(5) The utility will comply with the commission's order, laws, and rules
designating the corridor and designating the route; and
(6) Each owner of real property on which the adjustment is to be located and
any applicable governmental entity with an interest in the same adjustment
area do not oppose the adjustment.
b. Files detailed field studies indicating exclusion and avoidance areas for an area
encompassing the route outside the designated corridor equal to the length of the
adjustment of the proposed corridor.
c. Receives the commission's written authorization that the utility may impact the
avoidance area. If the commission does not authorize the impact to the
avoidance area, the utility must obtain siting authority for the affected portion of
the route adjustment. If the commission fails to act within ten working days of
receipt of the utility's filing of the certification and supporting documentation under
subdivisions a and b of subsection 4, the route adjustment is deemed approved.
The commission may not be required to hold a public hearing or publish a notice of
opportunity for a public hearing for any route adjustment under this section.
49-22-17. Improvement of sites or locations.
Utilities which have acquired an energy conversion facility site or transmission line route in
accordance with the provisions of this chapter may proceed to construct or improve such site or
route for the intended purposes at any time, subject to subsections 2 and 3 of section 49-22-16;
provided, that if such construction and improvement commences more than four years after a
certificate or permit for the site or route has been issued, then the utility must certify to the
commission that such site or route continues to meet the conditions upon which the certificate of
site compatibility or transmission facility construction permit was issued.
49-22-18. Rules and regulations.
The commission shall adopt rules and regulations in conformity with the provisions of this
chapter and to prescribe methods and procedures required therewith.
49-22-19. Hearing - Judicial review.
Any party aggrieved by the issuance of a certificate of site compatibility or transmission
facility construction permit from the commission, certification of continuing suitability filed by a
utility with the commission, or promulgation of a final order by the commission, may request a
rehearing by the commission. The hearing shall be conducted pursuant to chapter 28-32. There
shall be a right of appeal to the district court from any adverse ruling by the commission.
49-22-20. Revocation or suspension of certificate or permit.
A certificate of site compatibility or permit for the construction of a transmission facility may
be revoked or suspended for:
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1.
2.
3.
4.
Any material false statement in the application or in accompanying statements or
studies required of the applicant.
Failure to comply with the certificate or permit or any terms, conditions, or
modifications contained therein.
Violation of the provisions of this chapter or rules or regulations issued pursuant to this
chapter by the commission.
A determination by a district court pursuant to section 49-22-16.1.
49-22-21. Penalties.
1. Any person required by this chapter to have a certificate or permit who willfully begins
construction of an energy conversion facility or transmission facility without previously
securing a certificate or permit as prescribed by this chapter, or who willfully
constructs, operates, or maintains an energy conversion facility or transmission facility
other than in compliance with the certificate or permit and any terms, conditions, and
modifications contained therein is guilty of a class A misdemeanor.
2. Any person who willfully violates any regulation issued or approved pursuant to this
chapter or who willfully falsifies, tampers with, or renders inaccurate any monitoring
device or method required to be maintained under this chapter shall be guilty of a
class A misdemeanor.
3. Any person who willfully engages in any of the following conduct shall be subject to a
civil penalty of not to exceed ten thousand dollars for each such violation for each day
that such violations persist, except that the maximum penalty may not exceed two
hundred thousand dollars for any related series of violations:
a. Begins construction of an energy conversion facility or a transmission facility
without having been issued a certificate or permit pursuant to this chapter.
b. Constructs, operates, or maintains an energy conversion facility or a transmission
facility other than in compliance with the certificate or permit and any terms,
conditions, or modifications contained therein.
c. Violates any provision of this chapter or any rule adopted by the commission
pursuant to this chapter.
d. Falsifies, tampers with, or renders inaccurate any monitoring device or method
required to be maintained pursuant to a certificate or permit issued pursuant to
this chapter.
The civil penalty provided for in this subsection may be compromised by the
commission. The amount of the penalty when finally determined or agreed upon in
compromise shall be deposited in the general fund and, if not paid, may be recovered
in a civil action in the courts of the state.
4. Notwithstanding any other provision of this chapter, the commission may, by injunctive
procedures, without bond or other undertaking, proceed against any person who
willfully engages in any conduct described in subsection 3. No liability shall accrue to
the commission or its authorized representative in proceeding against any person
pursuant to this section.
49-22-22. Siting process expense recovery - Deposit in special fund - Continuing
appropriation.
1. Every applicant under this chapter shall pay to the commission an application fee:
a. An applicant for a certificate of site compatibility shall pay an amount equal to five
hundred dollars for each one million dollars of investment in the facility.
b. An applicant for a certificate of corridor compatibility shall pay an amount equal to
five thousand dollars for each one million dollars of investment in the facility.
c. An applicant for a waiver shall pay the amount which would be required for an
application for a certificate of site or corridor compatibility for the proposed facility.
If a waiver is not granted for a proposed facility, such application fee paid shall be
allowed as a credit against fees payable under this section in connection with an
application under this chapter for a certificate or permit for the proposed facility.
Page No. 12
d.
2.
3.
An applicant for a transfer of a certificate or permit shall pay an amount to be
determined by the commission to cover anticipated expenses of processing the
application.
e. An applicant certifying to the commission under subsection 3 of section 49-22-03
or obtaining siting authority under subdivision b of subsection 2 or subdivision c of
subsection 4 of section 49-22-16.3, shall pay an amount to be determined by the
commission to cover anticipated expenses of processing the application.
f. The application fee under subdivision a, b, or c may not be less than ten
thousand dollars nor more than one hundred thousand dollars.
At the request of the commission and with the approval of the emergency commission,
the applicant shall pay such additional fees as are reasonably necessary for
completion of the energy conversion facility site, transmission facility corridor, or
transmission facility route evaluation and designation process by the commission. In
no event shall the application fee under subsection 1 and any additional fees required
of the applicant under this subsection exceed an amount equal to one thousand
dollars for each one million dollars of investment in a proposed energy conversion
facility or ten thousand dollars for each one million dollars of investment in a proposed
transmission facility.
A siting process expense recovery fund is established in the state treasury. The
commission shall deposit payments received under subsections 1 and 2 in the siting
process expense recovery fund. All moneys deposited in the fund are appropriated on
a continuing basis to the commission to pay expenses incurred in the siting process.
The commission shall specify the time and method of payment of any fees and shall
refund the portion of fees collected under subsections 1 and 2 which exceeds the
expenses incurred for the evaluation and designation process.
49-22-23. Transfer.
Repealed by S.L. 1977, ch. 447, § 16.
49-22-24. Safety.
Every utility that owns or operates electric generation of any size for the primary purpose of
resale shall comply with the standards of the national electrical safety code in effect at the time
of construction of the generation.
Page No. 13
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