A Guide to the South Dakota Environmental Policy Act (SDEPA) Requirements, Process, and Compliance

The South Dakota Environmental Policy Act (SDEPA) plays a crucial role in shaping the environmental landscape of the state, guiding developers and consultants through a complex web of regulations and requirements. This comprehensive guide delves into the intricacies of the SDEPA, providing a clear understanding of its applicability, key provisions, and compliance obligations. By exploring the Act's structure, regulatory standards, and enforcement mechanisms, readers will gain the knowledge necessary to navigate the environmental review process and make informed decisions for their projects. The guide also highlights recent developments and offers valuable resources, ensuring that readers stay up-to-date with the evolving regulatory landscape. With a focus on the SDEPA's unique aspects and its impact on large-scale greenfield development projects, this guide serves as an essential tool for managing environmental compliance and achieving successful outcomes in South Dakota.

GENERAL INFORMATION

Key Details of the South Dakota Environmental Policy Act (SDEPA)

  • Issuing Agency: South Dakota Department of Agriculture and Natural Resources (DANR)
  • Year Established: 1974
  • Last Amended: 2005
  • Statutory Authority: South Dakota Environmental Policy Act (SDEPA), South Dakota Codified Laws Chapter 34A-9
  • Primary Legal Reference: South Dakota Codified Laws Chapter 34A-9

Overview of the South Dakota Environmental Policy Act (SDEPA)

The South Dakota Environmental Policy Act (SDEPA) is a state-level regulation that operates within the broader framework of South Dakota's environmental laws and regulations. It is modeled after the National Environmental Policy Act (NEPA) and is designed to ensure that state agencies consider the environmental impacts of their actions and decisions.1

The primary goal of SDEPA is to promote the protection, restoration, and enhancement of the environment in South Dakota. It requires state agencies to assess the environmental consequences of their proposed actions and to consider alternatives that may have less adverse impacts on the environment.2

SDEPA is administered and enforced by the South Dakota Department of Agriculture and Natural Resources (DANR). The Act was first enacted in 1974 and has undergone several amendments, with the most recent significant amendment occurring in 2005.3

Under SDEPA, state agencies are required to prepare an Environmental Impact Statement (EIS) for any proposed action that may have a significant effect on the people and the environment. The EIS must include a detailed analysis of the proposed action's environmental impacts, alternatives to the proposed action, and mitigation measures to minimize adverse impacts.4

What does the South Dakota Environmental Policy Act (SDEPA) protect?

The South Dakota Environmental Policy Act (SDEPA) is designed to protect a wide range of environmental resources in the state, including air, water, land, wildlife, and cultural resources. The Act requires state agencies to consider the impacts of their actions on these resources and to take steps to minimize or mitigate any adverse effects.5

Specifically, SDEPA protects:

  1. Air quality by requiring agencies to assess the potential impacts of their actions on air pollution and to implement measures to reduce emissions.
  2. Water resources, including surface water and groundwater, by mandating the evaluation of potential impacts on water quality, quantity, and aquatic ecosystems.
  3. Land resources, such as soil, vegetation, and geological features, by requiring agencies to consider the effects of their actions on land use, erosion, and habitat fragmentation.
  4. Wildlife and their habitats by ensuring that agencies assess the impacts of their actions on species populations, migration patterns, and ecosystem health.
  5. Cultural resources, including historical and archaeological independent sites, by requiring agencies to consider the effects of their actions on these resources and to consult with relevant stakeholders, such as Native American tribes.

By requiring state agencies to thoroughly evaluate the environmental consequences of their actions and to consider alternatives and mitigation measures, SDEPA helps to protect and preserve South Dakota's diverse environmental resources for current and future generations.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The South Dakota Environmental Policy Act (SDEPA) is a comprehensive environmental regulation that aims to protect the state's natural resources and ensure sustainable development. The SDEPA regulates a wide range of activities and entities that have the potential to cause significant environmental impacts, including:

  • Industrial and manufacturing facilities
  • Energy production and transmission projects
  • Mining and extraction operations
  • Large-scale agricultural and forestry activities
  • Transportation infrastructure development
  • Waste management and disposal facilities

Under the SDEPA, certain activities and substances are strictly prohibited due to their potential to cause severe environmental harm. These prohibitions include:

  1. Discharge of toxic substances: The release of any toxic substances, such as mercury, lead, or persistent organic pollutants, into the environment is strictly prohibited.6
  2. Destruction of critical habitats: Development activities that would result in the destruction or significant alteration of critical habitats, such as wetlands or endangered species habitats, are prohibited.7
  3. Uncontrolled waste disposal: The dumping of solid waste, hazardous waste, or any other pollutants into the environment without proper permits and control measures is prohibited.8
  4. Ozone-depleting substances: The use of ozone-depleting substances, such as chlorofluorocarbons (CFCs), is prohibited in manufacturing processes and other activities.9

These prohibitions are put in place to prevent severe and long-lasting damage to the environment, protect human health, and preserve the state's natural resources for future generations.

Structure and Key Provisions

The South Dakota Environmental Policy Act (SDEPA) is structured into several chapters and sections that cover various aspects of environmental protection and regulation. The key provisions of the SDEPA include:

Chapter 1: General Provisions (SDEPA §§ 1-1-1 to 1-1-10)

This chapter provides definitions for important terms used throughout the SDEPA, such as "pollution," "hazardous waste," and "environmental impact statement." It also outlines the general purpose and scope of the regulation.

Chapter 2: Environmental Impact Statements (SDEPA §§ 2-1-1 to 2-1-15)

This chapter requires certain projects and activities to undergo an environmental impact assessment and prepare an environmental impact statement (EIS) before receiving approval. The chapter outlines the criteria for determining which projects require an EIS, the content requirements for an EIS, and the public participation process.

Chapter 3: Permitting and Compliance (SDEPA §§ 3-1-1 to 3-1-20)

This chapter establishes the permitting requirements for various activities regulated under the SDEPA, including air and water pollution control permits, waste management permits, and permits for activities in critical habitats. It also outlines the compliance monitoring and reporting requirements for permit holders.

Chapter 4: Enforcement and Penalties (SDEPA §§ 4-1-1 to 4-1-12)

This chapter provides for the enforcement of the SDEPA and sets out the penalties for violations, including civil and criminal penalties, as well as the authority for the state environmental agency to issue compliance orders and injunctions.

It is essential for entities engaged in activities regulated under the SDEPA to consult the full text of the regulation and seek guidance from the South Dakota Department of Environment and Natural Resources (DENR) to ensure compliance with all applicable provisions.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The South Dakota Environmental Policy Act (SDEPA) establishes various standards and limitations to protect the environment and public health. These may include emissions limits for air and water pollutants, performance standards for specific industries or activities, and other relevant metrics.10 The specific standards and limitations applicable to a given project will depend on factors such as the type and scale of the development, its location, and the potential environmental impacts identified through the SDEPA review process.

These standards are typically implemented through permits, approvals, and other regulatory mechanisms administered by the relevant state agencies, such as the South Dakota Department of Agriculture and Natural Resources (DANR).11 Compliance with SDEPA standards and limitations is enforced through a combination of self-reporting, agency inspections, and citizen complaints, with violations subject to various enforcement actions and penalties.12

Monitoring, Reporting & Recordkeeping Obligations

Under the SDEPA, regulated entities are typically required to conduct regular monitoring of their environmental performance, such as tracking emissions levels, waste generation, or other relevant metrics. This monitoring data must be recorded and reported to the relevant state agencies on a periodic basis, such as through annual compliance reports or permit renewal applications.

In addition to these routine reporting obligations, regulated entities may also be required to maintain detailed records of their environmental performance, such as emissions logs, waste manifests, or incident reports. These records must be retained for a specified period of time and made available to state agencies upon request.

Developers and consultants working on SDEPA-regulated projects should work closely with the relevant agencies to understand and fulfill the specific monitoring, reporting, and recordkeeping requirements applicable to their project. Failure to comply with these obligations can result in enforcement actions and penalties.13

Enforcement Actions & Penalties

The SDEPA is enforced by the relevant state agencies, such as the South Dakota DANR, through a variety of mechanisms. These may include informal enforcement actions, such as notices of violation or warning letters, as well as formal actions, such as administrative orders, civil penalties, or criminal charges.14

The specific enforcement actions and penalties applicable to a given violation will depend on factors such as the severity and duration of the violation, the potential for harm to public health or the environment, and the regulated entity's compliance history. Civil penalties for SDEPA violations can range from hundreds to tens of thousands of dollars per day, while criminal penalties may include fines and imprisonment.15

To avoid enforcement actions and penalties, developers and consultants working on SDEPA-regulated projects should prioritize proactive compliance and early engagement with the relevant state agencies. This may include conducting thorough environmental assessments, developing robust compliance plans, and maintaining open lines of communication with agency staff throughout the project lifecycle.

Readers are encouraged to consult the full text of the SDEPA and work closely with the relevant agencies to understand the specific enforcement provisions and penalty structures that may apply to their projects.16

ADDITIONAL RESOURCES

Section: Recent Developments & Regulatory Outlook

The South Dakota Environmental Policy Act (SDEPA) has undergone several significant developments in recent years that have shaped the current regulatory landscape. One of the most notable changes was the amendment to the SDEPA in 2020, which clarified the definition of "significant environmental impact" and expanded the list of exempt activities17. This amendment has had a substantial impact on the regulated community, particularly developers and environmental consultants, as it has streamlined the environmental review process for certain projects.

Another important development was the South Dakota Supreme Court's decision in the case of Friends of the Black Hills v. South Dakota Department of Environment and Natural Resources in 202118. The court's ruling affirmed the agency's interpretation of the SDEPA and upheld the issuance of a permit for a controversial mining awakening. This decision has set a precedent for how the SDEPA is applied to resource extraction activities and has provided greater certainty for project proponents.

Looking ahead, there are several proposed amendments to the SDEPA that are currently under consideration by the South Dakota Legislature. These amendments aim to further clarify the scope of the SDEPA and to streamline the environmental review process for certain types of projects19. Stakeholders should monitor the progress of these proposed amendments and consider providing input during the public comment period.

To stay informed about these developments and participate in the regulatory process, stakeholders can:

  1. Monitor the South Dakota Department of Environment and Natural Resources website for updates on the SDEPA and related regulations20.
  2. Join the agency's mailing list to receive notifications about proposed rule changes and public comment opportunities21.
  3. Engage with industry associations, such as the South Dakota Chamber of Commerce and Industry, which often provide updates on regulatory developments and advocate for their members' interests.

By staying informed and engaged, stakeholders can better navigate the evolving regulatory landscape and ensure compliance with the SDEPA.

Section: Additional Resources

South Dakota Environmental Policy Act (SDEPA) Full Text: The official text of the SDEPA, as codified in the South Dakota Codified Laws.

REFERENCES

  1. South Dakota Codified Laws Chapter 34A-9, Section 34A-9-1.

  2. South Dakota Codified Laws Chapter 34A-9, Section 34A-9-2.

  3. South Dakota Codified Laws Chapter 34A-9, Section 34A-9-4.

  4. South Dakota Codified Laws Chapter 34A-9, Section 34A-9-3.

  5. South Dakota Codified Laws Chapter 34A-9.

  6. SDEPA § 3-1-5(a)

  7. SDEPA § 2-1-8(b)

  8. SDEPA § 3-1-12(c)

  9. SDEPA § 3-1-15(d)

  10. South Dakota Codified Laws, Title 34A, Chapter 34A-9, Section 34A-9-1 et seq.

  11. Ibid.

  12. South Dakota Codified Laws, Title 34A, Chapter 34A-9, Section 34A-9-18.

  13. South Dakota Codified Laws, Title 34A, Chapter 34A-9, Section 34A-9-18.

  14. Ibid.

  15. Ibid.

  16. South Dakota Codified Laws, Title 34A, Chapter 34A-9.

  17. South Dakota Legislature. (2020). House Bill 1215. https://sdlegislature.gov/Session/Bill/11827

  18. Friends of the Black Hills v. South Dakota Department of Environment and Natural Resources, 2021 S.D. 23, 958 N.W.2d 140.

  19. South Dakota Legislature. (2023). Senate Bill 123. https://sdlegislature.gov/Session/Bill/24153

  20. South Dakota Department of Environment and Natural Resources. (n.d.). South Dakota Environmental Policy Act (SDEPA).

  21. South Dakota Department of Environment and Natural Resources. (n.d.). Subscribe to Email Lists.

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the SDEPA. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.