An Act to prohibit the exercise of the right of eminent domain for the construction of certain facilities.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 21-35-1.1 be AMENDED:

21-35-1.1. A utility constructing a transmission line in this state that has obtained, not including a pipeline used for the transportation of carbon dioxide or hydrogen, which obtains a permit pursuant to chapter 49-41B and approval by legislative enactment as required pursuant to § 49-41B-4.1, is entitled to the power of exercise eminent domain, as provided by for in this chapter. However, such action shall The exercise of eminent domain pursuant to this chapter may not be construed to constitute approval of the use of federal eminent domain.

Section 2. That § 49-7-13 be AMENDED:

49-7-13. Any pipeline companies owning a pipeline which is a common carrier as defined by § 49-7-11A pipeline company may exercise the right of eminent domain in acquiring right‑of‑way for a pipeline that is a common carrier, as prescribed by statute. However, in, but not for a pipeline used for the transportation of carbon dioxide or hydrogen. In the case of school and public lands, no a right‑of‑way for the purpose of carriage of property by pipeline shall may not exceed ten feet in width, but the pipeline company shall have has the right to secure such the land as may be reasonably required for buildings, pumps, stations, substations, or tanks, or buildings necessary for the carriage of the type or kinds of property the pipeline company intends its pipeline to carry.

Section 3. That a NEW SECTION be added to chapter 49-7:

Notwithstanding any other provision of law, a person may not exercise the right of eminent domain to construct:

(1) A pipeline designed to transport carbon dioxide;

(2) A pipeline designed to transport hydrogen; or

(3) Any facility that qualifies for a tax credit pursuant to 26 U.S.C. § 45Q (August 16, 2022).

Section 4. That § 49-41B-28 be AMENDED:

49-41B-28. A permit for the construction of a transmission facility within a designated area may supersede or preempt any county or municipal land use, zoning, or building rules, regulations, or ordinances building, land use, or zoning ordinance, regulation, or rule, upon a finding by the Public Utilities Commission commission that such rules, or regulation, or ordinances the ordinance, regulation, or rule, as applied to the proposed route, are is unreasonably restrictive in view of existing technology, or factors of cost, or economics, or needs of parties where whether located in or out within or outside of the county or municipality. Without such a finding by the commission, no route shall be designated which violates local land-use zoning, or building rules, or regulations, or ordinances A permit for the construction of a transmission facility designed for transporting carbon dioxide or hydrogen does not supersede or preempt any county or municipal building, land use, or zoning ordinance, regulation or rule.

Section 5. That a NEW SECTION be added to chapter 49-41B:

Notwithstanding any other provision of law, a person may not exercise the right of eminent domain to construct a solar energy facility, wind energy facility, or any facility that qualifies for a tax credit pursuant to 26 U.S.C. § 45 (August 16, 2022) or 26 U.S.C. § 48 (January 1, 2023).