CHAPTER 49-34A
GAS AND ELECTRIC UTILITIES REGULATION
49-34A-1 Definition of terms.
49-34A-2 Service required of utilities.
49-34A-2.1 Refusal of service without permission of commission prohibited--Exceptions--Violation as petty offense--Separate offenses.
49-34A-3 Unreasonable preferences and prejudices prohibited--Violation as petty offense--Separate offenses.
49-34A-4 Regulatory powers of commission--Rules.
49-34A-5 Municipal authority terminated.
49-34A-6 Rates to be reasonable and just--Regulation by commission.
49-34A-7 System of accounts.
49-34A-8 Criteria for determination of rates by commission.
49-34A-8.1 Policy to alleviate financial burden of pricing structure.
49-34A-8.2 Incentive rates for improved performance and efficiency.
49-34A-8.3 Business development rates--Public interest exception.
49-34A-8.4 Burden on public utility to establish criteria for determination of rates.
49-34A-9 Deviation from schedules of rates and charges prohibited--Violation as petty offense--Separate offenses.
49-34A-10 Tariffs and schedules filed by utilities--Public inspection.
49-34A-11 Burden of proving reasonableness of rates.
49-34A-12 Change in rates--Notice to commission and affected customers.
49-34A-13 Hearing on rate changes.
49-34A-13.1 Persons permitted to appear before commission or submit comments--Disclosure of identity and interest--Party status controlled by statutes and rules.
49-34A-14 Suspension of proposed rate or practice pending hearing--Time.
49-34A-15 49-34A-15. Repealed by SL 1976, ch 296, § 30.
49-34A-16 Delay in effectuation of suspended rate schedule pending disposition of previously filed changes--Time--Violation as petty offense--Separate offenses.
49-34A-17 Implementation of proposed practice, proposed rate, or lower rate--Rate design--Accounts of customer payments--Refund of excess--Time limit.
49-34A-18 49-34A-18. Repealed by SL 1976, ch 296, § 30.
49-34A-19 Costs and revenue considered in determining rates--Acquisition cost of property as alternative--Projected income and expenses.
49-34A-19.1 Separate accounts required for nonutility business--Profits and losses considered by commission.
49-34A-19.2 Disallowance for rate purposes of unreasonable profits of affiliates in sales or services to utility.
49-34A-20 Rate increases not required to prevent competition.
49-34A-21 Determination of rates--Order--Maximum rate--Classification adjustment.
49-34A-22 Future rate reduction or credit as alternative to refund of excess charges pending determination on increases.
49-34A-23 Action by commission for refund of excess charges pending determination on increase--Costs recovered--Limitation of actions.
49-34A-24 Municipal taxes on utilities passed on to customers.
49-34A-25 Automatic adjustment of rates for changes in energy, fuel and gas costs, ad valorem taxes paid or commission approved fuel incentives--Revised rate schedule filed by utility--Filing of bond if commission orders--Order of commission--Appeal.
49-34A-25.1 Approval of tariff mechanisms for automatic annual adjustment of charges for jurisdictional costs of new or modified transmission facilities.
49-34A-25.2 Approval, rejection, or modification of certain tariffs--Notice and hearing.
49-34A-25.3 Filing for annual rate adjustments--Contents.
49-34A-25.4 Standards for approval of annual rate adjustments.
49-34A-26 Investigation of rates or services by commission--Notice--Action.
49-34A-27 Standards, classifications, regulations or practices fixed by commission--Measuring devices--Quality control--Filing with commission.
49-34A-28 49-34A-28. Repealed by SL 1976, ch 296, § 30.
49-34A-29 Issue of security or assumption of liability by utility prohibited unless authorized by commission.
49-34A-30 Short-term obligations permitted without commission approval--Maximum outstanding.
49-34A-31 Prompt disposition of applications on securities and obligations--Continuance.
49-34A-32 Findings required to permit issue of securities or assumption of obligation.
49-34A-33 Order permitting issue of securities or assumption of obligations--Supplemental orders.
49-34A-34 Application of security or proceeds in contravention of order prohibited unless commission consents.
49-34A-35 Sale, lease, disposition, purchase, merger, or consolidation prohibited unless authorized by commission--Certain transactions excepted.
49-34A-36 Investigation of proposed disposition of property--Time for decision.
49-34A-37 Purchase of voting stock in other utilities prohibited without commission's consent--Violation as petty offense--Separate offenses.
49-34A-38 49-34A-38, 49-34A-38.1. Repealed by SL 2007, ch 270, §§ 4, 5.
49-34A-39 Investigation of condition of public utilities--Hearings.
49-34A-40 Commission access to utility premises to examine, test and inspect--Utility's right to representation--Utilities to cooperate and assist.
49-34A-41 Order for production of utility books and records--Out-of-state records.
49-34A-42 Electric utility's exclusive rights in assigned service area--Connecting facilities in another area.
49-34A-43 Boundaries of assigned service areas--Contracts between utilities--Service areas within municipalities.
49-34A-44 Maps of service areas to be filed by electric utilities--Boundaries assigned by commission order--Adjustment of intertwined service areas--Protest of assigned service areas.
49-34A-45 Payments to municipality from revenues of cooperative providing electric service within municipality.
49-34A-46 Payments to municipality owning electric system from revenues of electric utility operating within municipality.
49-34A-47 Time of payments to municipality.
49-34A-48 Electric utility's right to continue service in area annexed to municipality.
49-34A-49 Municipal offer to purchase electric facilities in annexed area.
49-34A-50 Purchase price for electric facilities in area annexed by municipality.
49-34A-51 Application for determination by commission of price for municipal purchase of electric facilities in annexed area.
49-34A-52 Acknowledgment by utility of municipal offer to purchase facilities in annexed area--Obligations of parties.
49-34A-53 49-34A-53. Repealed by SL 1992, ch 330, § 2.
49-34A-53.1 Purchase of facilities in territory annexed after July 1, 1975--Time limit--Determination of gross revenue.
49-34A-54 Purchase by utility of areas disannexed by municipality.
49-34A-55 Sale or exchange of rights and property allowed between municipalities and utilities.
49-34A-56 Large new customers not required to take service from assigned utility--Notice and hearing by commission--Factors considered.
49-34A-57 Extension of lines to serve utility's or municipality's own property.
49-34A-58 Adequacy of service determined by commission--Notice and hearing--Order to correct inadequacy--Transfer of rights on failure to comply.
49-34A-59 Notice and hearing on violation of service area provisions--Time for decision.
49-34A-60 49-34A-60. Repealed by SL 1976, ch 296, § 30.
49-34A-61 Burden of proof on party seeking to modify or vacate commission order.
49-34A-61.1 Rehearings--Application--Grant or refusal--Time--Orders not stayed unless commission directs.
49-34A-62 Parties entitled to rehearings and appeals--Procedure.
49-34A-63 49-34A-63, 49-34A-64. Repealed by SL 1976, ch 296, § 30.
49-34A-65 Bond required when stay or suspension granted--Other security in addition or in lieu--Refund of increase not allowed on appeal.
49-34A-66 Violation of law or commission order--Civil penalty.
49-34A-67 Each violation or day's continuation as separate offense.
49-34A-68 Penalties cumulative--Single action does not bar other remedies.
49-34A-69 Commission to refer violations to attorney general.
49-34A-70 Preference on calendar for proceedings under chapter.
49-34A-71 Chapter complete--Laws in conflict repealed.
49-34A-72 Commission participation in federal proceedings--Recovery of expenses.
49-34A-73 Phase in rate plan for rate increases due to plant additions.
49-34A-73.1 Plant additions defined.
49-34A-74 Approval of phase in rate plan--Conditions.
49-34A-75 Review of reasonableness of rates under phase in rate plan--Adjustment.
49-34A-76 Filing of general rate case after end of phase in rate plan--Exception.
49-34A-77 Filing fee for phase in rate plan.
49-34A-78 Nonapproval of application for phase in rate plan.
49-34A-79 Public or electric utilities authorized to remove certain obstructions.
49-34A-80 Certain commercial small power production facilities subject to 49-34A-80 to 49-34A-92.
49-34A-81 49-34A-81. Repealed by SL 2003, ch 49, § 4.
49-34A-82 Definitions.
49-34A-83 Refund or credit of certain taxes for construction of certain power production facilities.
49-34A-84 Requirements for refund.
49-34A-85 Amount of refund.
49-34A-86 Application for refund--Refund claim not assignable--Exception.
49-34A-87 Secretary to prescribe form and documentation requirements.
49-34A-88 Deadline for submitting claim for refund--Department to withhold percentage of refund.
49-34A-89 Withheld amounts paid at completion of project.
49-34A-90 Fraudulent claim--Refunded sums constitute lien in favor of state.
49-34A-91 Right to hearing on denial of refund claim.
49-34A-92 Promulgation of rules.
49-34A-93 Implementation of and compliance with certain federal energy acts.
49-34A-94 Renewable electricity and recycled energy defined.
49-34A-95 Renewable energy credits for electricity authorized.
49-34A-96 Promulgation of rules regarding renewable energy credit system.
49-34A-97 Approval of tariff mechanisms for automatic annual adjustment of charges for environmental improvements.
49-34A-98 Approval, rejection, or modification of certain electric service tariffs.
49-34A-99 Annual rate adjustment filings for certain electric service tariffs.
49-34A-100 Approval, rejection, or modification of annual rate adjustment.
49-34A-101 State renewable, recycled, and conserved energy objective established.
49-34A-102 Qualifications for meeting renewable, recycled, and conserved energy objective.
49-34A-103 Calculation of amount of electricity from renewable, recycled, and conserved energy source.
49-34A-104 Evaluation of use as reasonable and cost effective.
49-34A-105 Annual reports concerning renewable, recycled, and conserved energy objective.
49-34A-106 Purchase and retirement of renewable energy and recycled energy credits.
49-34A-107 Separation and protection of assets of gas and electric utilities.
49-34A-108 Electric utility to file rates for purchases of electricity produced by small renewable power facilities.
49-34A-109 Definitions.
49-34A-110 Responsibility for safety and reliability of farm tap distribution system.
49-34A-111 Liability of farm tap service provider.
49-34A-112 Repealed.
49-34A-113 Repealed.
49-34A-114 Repealed.
49-34A-115 Repealed.
49-34A-116 Electric vehicle charging station--Electric utility--Exception.
49-34A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Assigned service area," the geographical area in which the boundaries are established as provided in §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-59, inclusive;
(2) "Commission," the South Dakota Public Utilities Commission;
(3) "Customer," any person contracting for or purchasing gas or electric service from a utility;
(4) "Depreciated original cost," the cost of property to the person first devoting it to public service, less the depreciation reserve, which includes accumulated depreciation charges calculated on a straight-line method and based upon the estimated service life of the property together with other items normally accounted for in the depreciation reserve, and does not include any good will or going concern value, nor does it include certificate value in excess of payments made or costs incurred in the initial acquisition thereof;
(5) "Electric line," any line for conducting electric energy at a design voltage of twenty-five thousand volts phase to phase or less and used for distributing electric energy directly to customers;
(6) "Electric service," electric service furnished to a customer for ultimate consumption, but not including wholesale electric service furnished by an electric utility to another electric utility for resale;
(7) "Electric utility," any person operating, maintaining, or controlling in this state, equipment or facilities for providing electric service to or for the public including facilities owned by a municipality;
(8) "Gas service," retail sale of natural gas or manufactured gas distributed through a pipeline to fifty or more customers or the sale of transportation services by an intrastate natural gas pipeline;
(9) "Gas utility," any person operating, maintaining, or controlling in this state equipment or facilities for providing gas service to or for the public;
(9A) "Intrastate natural gas pipeline," any natural gas pipeline located entirely within the state that transports gas from a receipt point to one or more locations for customers other than the pipeline operator. However, the term does not apply if there is only one customer and the customer is a wholly-owned subsidiary of the pipeline operator, the customer is the parent company of the pipeline operator, or the customer and the pipeline operator are wholly-owned subsidiaries of the same parent company. Further, the term does not apply to natural gas lines and appurtenant facilities used to gather gas from natural gas production facilities or sites and move the gas to an interconnecting transportation pipeline system;
(10) "Municipality," any incorporated town or city in South Dakota;
(11) "Person," a natural person, a partnership, a private corporation, a public corporation, a limited liability company, a municipality, an association, a cooperative whether incorporated or not, a joint stock association, a business trust, any of the federal, state and local governments, including any of their political subdivisions, agencies and instrumentalities, or two or more persons having joint or common interest;
(12) "Public utility," any person operating, maintaining, or controlling in this state equipment or facilities for the purpose of providing gas or electric service to or for the public in whole or in part, in this state. However, the term does not apply to an electric or gas utility owned by a municipality, political subdivision, or agency of the State of South Dakota or any other state or a rural electric cooperative as defined in § 47-21-1 for the purposes of §§ 49-34A-2 to 49-34A-4, inclusive, §§ 49-34A-6 to 49-34A-41, inclusive, and § 49-34A-62. The term, public utility, does apply to a rural electric cooperative which provides gas service;
(13) "Rate," any compensation, charge and classification, or any of them demanded, observed, charged, or collected by any public utility for any service and any rules, regulations, practices, or contracts affecting any such compensation, charge or classification;
(14) "Securities," stock and stock certificates or other evidence of interest or ownership, and bonds, notes or other evidence of indebtedness.
Source: SL 1965, ch 254, § 1; SDCL § 49-41-1; SL 1970, ch 261, § 1; SL 1975, ch 283, § 1; SL 1976, ch 296, §§ 1 to 6; SL 1977, ch 391; SL 1987, ch 354, § 2; SL 1990, ch 374; SL 1991, ch 386, § 1; SL 1994, ch 349, § 6; SL 1996, ch 273, §§ 1, 2; SL 2015, ch 231, § 1.
49-34A-2. Service required of utilities.
Every public utility shall furnish adequate, efficient, and reasonable service.
Source: SL 1970, ch 261, § 32; SDCL Supp, § 49-41-9.1; SL 1975, ch 283, § 2.
49-34A-2.1. Refusal of service without permission of commission prohibited--Exceptions--Violation as petty offense--Separate offenses.
No public utility may, except in cases of emergency, fail to provide, discontinue, reduce or impair service to a community, or a part of a community, except for nonpayment of account or violation of rules and regulations, unless permission has been first obtained from the Public Utilities Commission to do so. An intentional violation of this section is a petty offense. Each day's violation is a separate offense.
Source: SL 1976, ch 296, § 7; SL 1983, ch 15, § 139.
49-34A-3. Unreasonable preferences and prejudices prohibited--Violation as petty offense--Separate offenses.
No public utility may, as to rates or service, make or grant an unreasonable preference or advantage to any person or subject any person to any unreasonable prejudice or disadvantage. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1970, ch 261, §§ 31, 32; SDCL Supp, § 49-41-9.1; SL 1975, ch 283, § 5; SL 1983, ch 15, § 140.
49-34A-4. Regulatory powers of commission--Rules.
The commission shall regulate to the extent provided in this chapter every public utility as defined in this chapter. The commission may promulgate rules pursuant to chapter 1-26 in furtherance of the purposes of this chapter concerning:
(1) Procedures and requirements for applications for rate and tariff changes;
(2) Requirements for gas and electric utilities to maintain and make available to the public and the commission records and information;
(3) Requirements and procedures regarding customer billings and meter readings;
(4) Requirements regarding availability of meter tests;
(5) Requirements regarding billing adjustments for meter errors;
(6) Procedures and requirements for handling customer disputes and complaints;
(7) Procedures and requirements regarding temporary service, changes in location of service and service interruptions;
(8) Standards and procedures to ensure nondiscriminatory credit policies;
(9) Procedures, requirements and record-keeping guidelines regarding deposit policies;
(10) Procedures, requirements and record-keeping guidelines regarding customer refunds;
(11) Policies for refusal of gas or electric service;
(12) Policies for disconnection and transfer of gas and electric service;
(13) Customer payment plans for delinquent bills;
(14) Requirements regarding advertising; and
(15) Procedures and requirements for applications for tariff mechanisms seeking the automatic annual adjustment of charges for the jurisdictional costs of new or modified transmission facilities under the provisions of § 49-34A-25.1.
Source: SL 1975, ch 283, § 6; SL 1986, ch 22, § 23; SL 1990, ch 371, § 3; SL 2006, ch 239, § 6.
49-34A-5. Municipal authority terminated.
Municipal corporations shall have no authority or jurisdiction over rates and conditions of service of any public utility subject to the jurisdiction of the South Dakota Public Utilities Commission under the provisions of this chapter.
Source: SL 1975, ch 283, § 31.
49-34A-6. Rates to be reasonable and just--Regulation by commission.
Every rate made, demanded or received by any public utility shall be just and reasonable. Every unjust or unreasonable rate shall be prohibited. The Public Utilities Commission is hereby authorized, empowered and directed to regulate all rates, fees and charges for the public utility service of all public utilities, including penalty for late payments, to the end that the public shall pay only just and reasonable rates for service rendered.
Source: SL 1975, ch 283, § 16.
49-34A-7. System of accounts.
The Public Utilities Commission shall designate a system of accounts to be kept by public utilities subject to its jurisdiction.
Source: SL 1975, ch 283, § 26; SL 1976, ch 296, § 8.
49-34A-8. Criteria for determination of rates by commission.
The commission, in the exercise of its power under this chapter to determine just and reasonable rates for public utilities, shall give due consideration to the public need for adequate, efficient, economical, and reasonable service and to the need of the public utility for revenues sufficient to enable it to meet its total current cost of furnishing such service, including taxes and interest, and including adequate provision for depreciation of its utility property used and necessary in rendering service to the public, and to earn a fair and reasonable return upon the value of its property.
Source: SL 1975, ch 283, § 16; SL 1976, ch 296, § 9; SL 2007, ch 269, § 1.
49-34A-8.1. Policy to alleviate financial burden of pricing structure.
Notwithstanding any other provision of law, the Public Utilities Commission shall after opportunity for hearing and rate design studies develop a policy alleviating the financial burden to electric and gas consumers of the declining block rate structure and any other pricing structure presently used by electric and gas utilities in the State of South Dakota.
Source: SL 1976, ch 296, § 10.
49-34A-8.2. Incentive rates for improved performance and efficiency.
In addition to any other rate authorized by this chapter, the commission may approve incentive rates to encourage improvement in the performance and efficiency of public utilities. The rates shall be in the form of preapproved rate models made applicable as levels of performance are attained by the utility. If approved, no such incentive rate constitutes a violation of § 49-34A-3 or a change in rates pursuant to § 49-34A-12. The provisions of this section apply to any incentive rate tariff approved by the commission in existence on July 1, 1996.
Source: SL 1996, ch 274.
49-34A-8.3. Business development rates--Public interest exception.
In addition to any other rate authorized by this chapter, the commission may approve business development rates authorizing a utility to negotiate and agree with a customer for specific rates which differ from standard rates otherwise applicable to the customer. All business development rates shall be approved as being in the public interest under such terms and conditions as the commission may provide in a proceeding under this chapter. If approved, no such business development rate constitutes a violation of § 49-34A-3 or a change in rates pursuant to § 49-34A-12. The provisions of this section apply to any business development rate tariff approved by the commission in existence on July 1, 1996.
Source: SL 1996, ch 275.
49-34A-8.4. Burden on public utility to establish criteria for determination of rates.
The burden is on the public utility to establish that the underlying costs of any rates, charges, or automatic adjustment charges filed under this chapter are prudent, efficient, and economical and are reasonable and necessary to provide service to the public utility's customers in this state.
Source: SL 2007, ch 269, § 2.
49-34A-9. Deviation from schedules of rates and charges prohibited--Violation as petty offense--Separate offenses.
No public utility may, directly or indirectly, by any device whatsoever or in any manner, charge, demand, collect, or receive from any person a greater or lesser compensation for any service within the jurisdiction of the Public Utilities Commission rendered or to be rendered by such public utility than prescribed in its schedules of rates and charges which have been filed with the commission as provided in this chapter. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 4; SL 1983, ch 15, § 141.
49-34A-10. Tariffs and schedules filed by utilities--Public inspection.
Pursuant to rules promulgated under chapter 1-26 by the Public Utilities Commission, every public utility shall file with the commission, within such time and in such form as the commission may designate, tariffs and schedules showing the terms and conditions of service and all rates established by the public utility and collected or enforced, or to be collected or enforced, within the jurisdiction of the commission. The public utility shall keep copies of such tariffs and schedules open to public inspection under such rules as the commission may promulgate. Schedules and tariffs approved by the commission have the force and effect of law.
Source: SL 1970, ch 261, § 31; SDCL Supp, § 49-41-9.2; SL 1975, ch 283, § 3; SL 2004, ch 286, § 1.
49-34A-11. Burden of proving reasonableness of rates.
The burden of proof to show that any rate filed is just and reasonable shall be upon the public utility filing same.
Source: SL 1975, ch 283, § 10.
49-34A-12. Change in rates--Notice to commission and affected customers.
Unless the Public Utilities Commission otherwise orders, no public utility shall change any rate which has been duly established under this chapter, except after thirty days' notice to the commission, which notice shall include statements of facts, expert opinions, substantiating documents, and exhibits, supporting the change requested, and further shall state the change proposed to be made in the rates then in force, and the time when the modified rates will go into effect. The utility shall give written notice of any proposed increase of any rate to all affected customers served by the public utility at least thirty days prior to the effective date thereof. The notice to affected customers shall include a statement that the customer has a right to join with twenty-four other customers and file a written objection to such rate increase and that they may request the commission to suspend the rate increase and to hold a public hearing to determine if such rate increase should be allowed. All proposed changes shall be shown by filing new schedules or shall be plainly indicated upon schedules on file and in force at the time.
Source: SL 1975, ch 283, § 7; SL 1976, ch 296, § 11.
49-34A-13. Hearing on rate changes.
Whenever there is filed with the Public Utilities Commission any schedule modifying or resulting in a change in any rates then in force, together with the filed statements of facts, expert opinions, substantiating documents, and exhibits, supporting the changes requested, the commission may upon complaint or may upon its own motion, upon reasonable notice conduct a hearing to determine whether the rates are just and reasonable.
Source: SL 1975, ch 283, § 8.
49-34A-13.1. Persons permitted to appear before commission or submit comments--Disclosure of identity and interest--Party status controlled by statutes and rules.
Any person may appear before the commission and present comments regarding the proceeding or submit written comments to the commission. The person shall fully and fairly make a full disclosure of identity, the interest of the person in the proceeding, and the position to be taken. The contentions of the person shall be relevant to the issues presented in the proceeding. Any person appearing pursuant to this section is not afforded the status of a party to the proceeding unless the person has been granted party status in accordance with applicable statutes and rules governing intervention in proceedings before the commission.
Source: SL 1976, ch 296, § 15; SL 1994, ch 351, § 136; SL 2015, ch 231, § 2.
49-34A-14. Suspension of proposed rate or practice pending hearing--Time.
Pending a hearing pursuant to § 49-34A-13 and the decision thereon, the commission may, by order, suspend the operation of the proposed rate or practice. The suspension may not last longer than one hundred eighty days after the proposed rate or practice was filed.
Source: SL 1975, ch 283, § 8; SL 2008, ch 242, § 1.
49-34A-16. Delay in effectuation of suspended rate schedule pending disposition of previously filed changes--Time--Violation as petty offense--Separate offenses.
No public utility may put a suspended rate schedule into effect until at least forty-five days after the Public Utilities Commission has made a determination concerning any previously filed change of the rate schedule. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 16; SL 1983, ch 15, § 142.
49-34A-17. Implementation of proposed practice, proposed rate, or lower rate--Rate design--Accounts of customer payments--Refund of excess--Time limit.
The public utility may implement the proposed practice, the proposed rate, or a rate lower than the proposed rate if:
(1) The proposed rate or practice has not been suspended or is no longer subject to suspension;
(2) The commission has not issued a final decision; and
(3) Thirty days has passed from the date of filing.
If the public utility implements the proposed rate or a rate lower than the proposed rate, the public utility shall use the same rate design that is currently in effect or the rate design that the public utility proposed when the public utility filed for the increased rate. If the public utility uses a rate design different than the rate design currently in effect or the rate design the public utility proposed when the public utility filed for the increased rate, commission approval is needed prior to implementation.
In the case of a proposed increased rate, the commission may, by order, require the public utility to keep an accurate account in detail of all amounts received by reason of the increase, specifying by whom and in whose behalf the amounts are paid. Upon completion of the hearings and decision, the commission may by further order require the public utility to refund, with interest, to customers, the portion of the increased rates found to be unjust, unreasonable, or discriminatory. The refund shall be carried out as provided in §§ 49-34A-22 and 49-34A-23. If the commission does not issue a final decision within twelve months from the date the proposed rate or practice was filed, the commission may not require a refund of increased rates charged after the twelve months.
Source: SL 1975, ch 283, § 8; SL 1976, ch 296, § 17; SL 1977, ch 392, § 1; SL 2008, ch 242, § 2; SL 2011, ch 209, § 1.
49-34A-19. Costs and revenue considered in determining rates--Acquisition cost of property as alternative--Projected income and expenses.
In determining the rate base upon which the utility is to be allowed to earn a fair rate of return, the Public Utilities Commission shall use the depreciated original cost of the property. However, the commission may alternatively use the full acquisition cost of any property acquired by the utility after the property was first devoted to public use. Full acquisition cost of such property shall be used if:
(1) The utility makes application prior to acquisition;
(2) The commission holds a hearing;
(3) The commission finds that the cost of acquisition is prudently incurred; and
(4) The commission finds that the acquisition will provide benefits to the utility's customers.
In determining the revenue requirement the commission shall consider revenue, expenses, cost of capital and any other factors or evidence material and relevant thereto. The commission may take into consideration the reasonable income and expenses that will be forthcoming in a period of twenty-four months in advance of the test year.
Source: SL 1975, ch 283, § 12; SL 1976, ch 296, § 18; SL 1982, ch 330; SL 1990, ch 375.
49-34A-19.1. Separate accounts required for nonutility business--Profits and losses considered by commission.
Each public utility engaged directly or indirectly in any other business than that of the production, transmission or furnishing of gas or electricity to the public shall, if required by the commission, keep and render separately to the commission the accounts of all such other businesses, in which case all the provisions of this chapter shall apply to the books, accounts, papers, and records of such other business and all profits and losses may be taken into consideration by the commission if deemed relevant to the general fiscal condition of the public utility.
Source: SDCL, § 49-34A-19 as added by SL 1976, ch 296, § 18; SL 1991, ch 386, § 2.
49-34A-19.2. Disallowance for rate purposes of unreasonable profits of affiliates in sales or services to utility.
The Public Utilities Commission, in determining the allowance for materials or services to be included in costs of operations for rate-making purposes, may disallow any unreasonable profit made in the sale of materials to or service supplied for any public utility by any firm or corporation owned or controlled directly or indirectly by such utility or any affiliate, subsidiary, parent company, associate or any corporation whose controlling stockholders are also controlling stockholders of such utility. The burden of proof shall be on the public utility to prove that no unreasonable profit is involved.
Source: SDCL, § 49-34A-19 as added by SL 1976, ch 296, § 18.
49-34A-20. Rate increases not required to prevent competition.
No public utility shall be required to generally increase its rates as to customers of an entire class for the purpose of preventing competition between two public utilities.
Source: SL 1975, ch 283, § 5.
49-34A-21. Determination of rates--Order--Maximum rate--Classification adjustment.
If, after the hearing, the Public Utilities Commission fails to find the rates to be just and reasonable or if the commission finds the rate to be discriminatory, the commission shall determine the level of rates to be charged or applied by the utility for the service in question and shall fix the same by order to be served upon the utility; and the rates are thereafter to be observed until changed, as provided by this chapter. In no event shall the rates exceed the level of rates requested by the public utility. Rate classifications may be adjusted upward or downward by the commission; provided the anticipated receipts will not exceed the amount of return requested.
Source: SL 1975, ch 283, § 11; SL 1976, ch 296, § 19.
49-34A-22. Future rate reduction or credit as alternative to refund of excess charges pending determination on increases.
If, after a suspended schedule has been put into effect pursuant to § 49-34A-17, the rates are finally determined to be excessive, the commission may, as an alternative to ordering an immediate refund, reduce future rates that would otherwise be charged to offset such excessive rates; or as an alternative order that a credit on future electric or gas bills be given to all consumers based on the proportionate electric or gas bills paid by all consumers in the month prior to such order being entered.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 20; SL 1991, ch 386, § 3.
49-34A-23. Action by commission for refund of excess charges pending determination on increase--Costs recovered--Limitation of actions.
If, after a suspended schedule has been put into effect pursuant to § 49-34A-17, the rates are finally determined to be excessive but the public utility fails to make refunds within the period of time prescribed by the Public Utilities Commission, the commission shall sue therefor and is authorized to recover on behalf of all persons entitled to a refund. In addition to the amount of the refund and interest due, the commission shall be entitled to recover reasonable attorney's fees, court costs and estimated cost of administering the distribution of the refund to persons entitled thereto. No suit under this section shall be maintained unless instituted within two years after the end of the period of time prescribed by the commission for repayment of refunds.
Source: SL 1975, ch 283, § 9; SL 1976, ch 296, § 21.
49-34A-24. Municipal taxes on utilities passed on to customers.
If any municipal corporation imposes a sales tax or non ad valorem tax on revenues collected or earnings by any public utility, such public utility shall add the tax collected on to the respective bills to be paid by the various persons purchasing electricity or natural, manufactured, or mixed gas in such municipality.
Source: SL 1975, ch 283, § 17.
49-34A-25. Automatic adjustment of rates for changes in energy, fuel and gas costs, ad valorem taxes paid or commission approved fuel incentives--Revised rate schedule filed by utility--Filing of bond if commission orders--Order of commission--Appeal.
The commission shall permit a public utility to file rate schedules containing provisions for the automatic adjustment of charges for public utility service in direct relation to changes in wholesale rates for energy delivered, the delivered costs of fuel used in generation of electricity, the delivered cost of gas, ad valorem taxes paid, or commission approved fuel incentives. The amended rate schedules shall be filed with the commission on or before the effective date of the change in costs, and if the commission determines that the revised rate schedule is in error, the commission may within ten days of receipt thereof require by order the public utility to file a bond or other security upon such terms and conditions as the commission may require and for such purposes as contained in §§ 49-34A-17 and 49-34A-22. Such rates may go into effect on the date of the change in costs subject to the above refund provisions. Failure of the commission to enter an order in regard thereto shall be deemed approval. The public utility may appeal such order pursuant to and in accordance with § 49-34A-62.
Source: SL 1975, ch 283, § 13; SL 1977, ch 393, § 1; SL 1979, ch 316; SL 1996, ch 276.
49-34A-25.1. Approval of tariff mechanisms for automatic annual adjustment of charges for jurisdictional costs of new or modified transmission facilities.
Notwithstanding any other provision of this chapter, the commission may approve a tariff mechanism for the automatic annual adjustment of charges for the jurisdictional costs of new or modified transmission facilities with a design capacity of thirty-four and one-half kilovolts or more and which are more than five miles in length. For the purposes of §§49-34A-25.1 to 49-34A-25.4, inclusive, electric transmission facilities and electric transmission lines covered by this section include associated facilities such as substations and transformers.
Source: SL 2006, ch 239, § 1.
49-34A-25.2. Approval, rejection, or modification of certain tariffs--Notice and hearing.
Upon filing of an application consistent with rules promulgated by the commission by any public utility providing transmission service, the commission may approve, reject, or modify, after notice, hearing, and comment, a tariff that:
(1) Allows the public utility to recover on a timely basis the costs net of revenues of facilities described in § 49-34A-25.1;
(2) Allows a return on investment at the level approved in the public utility's last general rate case, unless a different return is found to be consistent with the public interest;
(3) Provides a current return on construction work in progress, if the recovery from retail customers for the allowance for funds used during construction is not sought through any other mechanism;
(4) Allocates project costs appropriately between wholesale and retail customers; and
(5) Terminates recovery once costs have been fully recovered or have otherwise been reflected in the public utility's general rates.
Source: SL 2006, ch 239, § 2.
49-34A-25.3. Filing for annual rate adjustments--Contents.
A public utility may file annual rate adjustments to be applied to customer bills paid under the tariff approved pursuant to § 49-34A-25.2. In the utility's filing, the public utility shall provide:
(1) A description of and context for the facilities included for recovery;
(2) A schedule for implementation of applicable projects;
(3) The public utility's costs for these projects;
(4) A description of the public utility's efforts to ensure the lowest reasonable costs to ratepayers for the project; and
(5) Calculations to establish that the rate adjustment is consistent with the terms of the tariff established in § 49-34A-25.2.
Source: SL 2006, ch 239, § 3.
49-34A-25.4. Standards for approval of annual rate adjustments.
Upon receiving a filing under § 49-34A-25.3 for a rate adjustment pursuant to the tariff established in § 49-34A-25.2, the commission shall approve the annual rate adjustments if, after notice, hearing, and comment, the costs included for recovery through the tariff were or are expected to be prudently incurred and achieve transmission system improvements at the lowest reasonable cost to ratepayers.
Source: SL 2006, ch 239, § 4.
49-34A-26. Investigation of rates or services by commission--Notice--Action.
On its own motion or upon a complaint made against any public utility, by the governing body of any political subdivision, by another public utility, or by any twenty-five consumers of the particular utility that any of the rates, tolls, tariffs, charges, or schedules or any joint rate or any regulation, measurement, practice, act or omission affecting or relating to the transmission, delivery or furnishing of natural gas or electricity or any service in connection therewith is in any respect unreasonable, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the Public Utilities Commission shall proceed, with notice, to make such investigation as it may deem necessary and take such action as deemed necessary and appropriate.
Source: SL 1975, ch 283, § 14; SL 1976, ch 296, § 22.
49-34A-27. Standards, classifications, regulations or practices fixed by commission--Measuring devices--Quality control--Filing with commission.
The Public Utilities Commission after hearing upon reasonable notice had upon its own motion or upon complaint, may ascertain and fix just and reasonable standards, classifications, regulations or practices to be observed and followed by any or all public utilities with respect to the service, product, or commodity to be furnished; ascertain and fix adequate and reasonable standards for the measurement of the quantity, quality, pressure, initial voltage or other condition pertaining to the supply of such service, product, or commodity; prescribe reasonable regulations for the examination and testing of such service, product, or commodity and for the measurement thereof; establish or approve reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for measurements; and provide for the examination and testing of any and all appliances used for the measurement of any service, product, or commodity of any public utility. Any standards, classifications, regulations or practices now or hereafter observed or followed by any public utility may be filed with the commission, and the same shall continue in force until amended by the public utility or until suspended or changed by the commission as provided in this chapter.
Source: SL 1975, ch 283, § 15.
49-34A-29. Issue of security or assumption of liability by utility prohibited unless authorized by commission.
No public utility organized under the laws of this state or any public utility organized under the laws of any other state receiving more than twenty-five percent of its gross revenue in this state and which nonresident public utility is not subject to the jurisdiction of the federal power commission in the issuance of its securities shall issue any security, or assume any obligation or liability as guarantor, endorser, surety, or otherwise, in respect of any security of another person, unless and until, and then only to the extent that, upon application by the public utility, the Public Utilities Commission by order authorizes such issue or assumption of liability.
Source: SL 1975, ch 283, § 18; SL 1977, ch 394, § 1.
49-34A-30. Short-term obligations permitted without commission approval--Maximum outstanding.
Section 49-34A-29 shall not apply to the issue or renewal of, or assumption of liability on, a note or draft maturing not more than one year after the date of such issue, renewal, or assumption of liability, and aggregating, together with all other then outstanding notes and drafts of a maturity of one year or less on which such public utility is primarily or secondarily liable, not more than five percentum of the par value of the other securities of the public utility then outstanding. In the case of securities having no par value, the par value for the purpose of this section shall be the fair market value as of the date of issue.
Source: SL 1975, ch 283, § 21.
49-34A-31. Prompt disposition of applications on securities and obligations--Continuance.
All applications to the Public Utilities Commission under the provisions of §§ 49-34A-29 and 49-34A-30 shall be disposed of promptly, and in any event within thirty days after petition is filed with the commission unless, for good cause, it is necessary to continue consideration thereof for a longer period. Whenever such application is continued beyond said thirty-day period the commission shall enter its order effecting such continuance and stating fully therein the facts requiring continuance for a designated period of time.
Source: SL 1975, ch 283, § 22; SL 1976, ch 296, § 23.
49-34A-32. Findings required to permit issue of securities or assumption of obligation.
The Public Utilities Commission shall make an order under § 49-34A-29 only if it finds that an issue or assumption is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service, and is reasonably necessary or appropriate for such purposes.
Source: SL 1975, ch 283, § 18.
49-34A-33. Order permitting issue of securities or assumption of obligations--Supplemental orders.
The Public Utilities Commission, after opportunity for hearing, may grant any application under §§ 49-34A-29 and 49-34A-30 in whole or in part, and with such modifications and upon such terms and conditions as it may find necessary or appropriate, and may from time to time, after opportunity for hearing and for good cause shown, make such supplemental orders in the premises as it may find necessary or appropriate, and may by any such supplemental order modify the provisions of any previous order as to the particular purposes, uses, and extent to which, or the conditions under which, any security so theretofore authorized or the proceeds thereof may be applied, subject always to the requirements of this chapter.
Source: SL 1975, ch 283, § 19; SL 1976, ch 296, § 24.
49-34A-34. Application of security or proceeds in contravention of order prohibited unless commission consents.
No public utility shall, without the consent of the Public Utilities Commission, apply any security or any proceeds thereof to any purpose not specified in the commission's order, or supplemental order, or to any purpose in excess of the amount allowed for such purpose in such order, or otherwise in contravention of such order.
Source: SL 1975, ch 283, § 20.
49-34A-35. Sale, lease, disposition, purchase, merger, or consolidation prohibited unless authorized by commission--Certain transactions excepted.
No public utility, without first being authorized to do so by the commission, may:
(1) Sell, lease, or otherwise dispose of its property or business constituting an operating unit or system in this state to another person;
(2) Sell, lease, or otherwise dispose of its operating property or plant used to provide gas or electric service to its customers in this state to another person;
(3) Purchase the property or business constituting an operating unit or system in this state of another public utility; or
(4) Merge or consolidate with another public utility operating in this state.
However, if the sale, lease, merger, consolidation, or other disposition of the property or business of one public utility to another person, as provided in subdivisions (1) to (4), inclusive, does not involve a sale, lease, merger, consolidation, or disposition wherein the fair market value exceeds ten million dollars, the sale, lease, merger, consolidation, or disposition is not subject to the restrictions of this section.
No person may acquire or gain control either directly or indirectly of any public utility doing business in this state that has a fair market value exceeding ten million dollars without the commission's prior authorization. As used in this section, the term, control, means the right to direct or cause the direction of the management and policies of the public utility, whether through the ownership of voting securities, by contract, or otherwise.
Source: SL 1975, ch 283, § 23; SL 2007, ch 270, § 1.
49-34A-36. Investigation of proposed disposition of property--Time for decision.
Upon the filing of an application for the approval of the commission to an action described in § 49-34A-35, the commission shall investigate the application, with or without public hearing, and in case of a public hearing, upon such notice as the commission may require. The commission shall act on the application within one hundred eighty days and shall approve the proposed action unless the commission finds that there is a likelihood of significant adverse impacts to customers in this state.
Source: SL 1975, ch 283, § 23; SL 2007, ch 270, § 2.
49-34A-37. Purchase of voting stock in other utilities prohibited without commission's consent--Violation as petty offense--Separate offenses.
No public utility subject to the jurisdiction of the commission may purchase voting stock in another public utility doing business in South Dakota without first having made application to and received the approval of the commission within the time and in the manner provided in § 49-34A-36. An intentional violation of this section is a petty offense. After the first judgment, each day's violation is a separate offense.
Source: SL 1975, ch 283, § 24; SL 1983, ch 15, § 143; SL 2007, ch 270, § 3.
49-34A-39. Investigation of condition of public utilities--Hearings.
The Public Utilities Commission upon complaint or on its own initiative and whenever it may deem it necessary in the performance of its duties may investigate and examine the condition and operation of public utilities or any particular public utility. In conducting such investigations, the commission may proceed either with or without a hearing as it may deem best but it shall make no order without affording the parties affected thereby a hearing.
Source: SL 1975, ch 283, § 29.
49-34A-40. Commission access to utility premises to examine, test and inspect--Utility's right to representation--Utilities to cooperate and assist.
The commissioners and the duly authorized officers and employees of the Public Utilities Commission, during business hours, may enter upon any premises occupied by any public utility for the purpose of making examinations and tests and to inspect the accounts, books, papers and documents of any public utility for the purpose of exercising any power provided for in this chapter, and may set up and use on such premises any apparatus and appliance necessary therefor. Such public utility shall have the right to be represented at the making of such examinations, tests and inspections. Such public utility, its officers and employees, shall facilitate such examinations, tests and inspections by giving every reasonable aid to the commissioners and any person or persons designated by the commission for the duties aforesaid. Every public utility shall furnish to the commission upon request all evidence in its possession and all assistance in its power, requested by the commission, to aid it in its determinations.
Source: SL 1975, ch 283, § 27.
49-34A-41. Order for production of utility books and records--Out-of-state records.
The Public Utilities Commission may require, by order served on any public utility in the manner provided in this chapter, for the service of orders, the production within this state at such time and place as it may designate, of any books, accounts, papers, or records of the public utility relating to its business or affairs within the state, pertinent to any lawful inquiry and kept by the public utility in any office or place without this state, or, at its option, verified or photostatic copies in lieu thereof, so that an examination thereof may be made by the commission or under its direction.
Source: SL 1975, ch 283, § 28; SL 1976, ch 296, § 25.
49-34A-42. Electric utility's exclusive rights in assigned service area--Connecting facilities in another area.
Each electric utility has the exclusive right to provide electric service at retail at each and every location where it is serving a customer as of March 21, 1975, and to each and every present and future customer in its assigned service area. No electric utility shall render or extend electric service at retail within the assigned service area of another electric utility unless such other electric utility consents thereto in writing and the agreement is approved by the commission consistent with § 49-34A-55. However, any electric utility may extend its facilities through the assigned service area of another electric utility if the extension is necessary to facilitate the electric utility connecting its facilities or customers within its own assigned service area.
The commission shall have the jurisdiction to enforce the assigned service areas established by §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-59, inclusive.
Source: SL 1965, ch 254, §§ 5, 8, 10; SDCL, §§ 49-41-4, 49-41-7, 49-41-9; SL 1970, ch 261, §§ 5, 8, 10; SL 1975, ch 283, § 38; SL 1991, ch 386, § 4.
49-34A-43. Boundaries of assigned service areas--Contracts between utilities--Service areas within municipalities.
The boundaries of each assigned service area, outside of incorporated municipalities, shall be a line equidistant between the electric lines of adjacent electric utilities as they existed on March 21, 1975, provided that these boundaries may be modified by the Public Utilities Commission to take account of natural and other physical barriers which would make service of electric power and energy beyond those barriers economically impractical and shall be modified to take account of the contracts provided for in this section, and provided further that said boundaries shall also be modified by the commission to take into account orders entered before July 1, 1975, by the electric mediation board.
Contracts between electric utilities, which are executed on or before July 1, 1976, designating service areas and customers to be served by the electric utilities approved by the commission shall be valid and enforceable and shall be incorporated into the appropriate assigned service areas. The commission shall approve a contract if it finds that the contract will eliminate or avoid unnecessary duplication of facilities, will provide adequate electric service to all areas and customers affected and will promote the efficient and economical use and development of the electric systems of the contracting electric utilities.
Where a single electric utility provided electric service within a municipality on March 21, 1975, that entire municipality shall constitute a part of the assigned service area of that electric utility. Nothing contained in this chapter shall modify existing rights of municipalities to establish an electric utility. Where two or more electric utilities provided electric service in a municipality on March 21, 1975, the boundaries of the assigned service areas within an incorporated municipality shall be assigned pursuant to the equal distance concept as applied to lines located only within the municipal boundaries.
Source: SL 1965, ch 254, §§ 6, 7, 9; SDCL, §§ 49-41-5, 49-41-6, 49-41-8; SL 1970, ch 261, §§ 6, 7, 9; SL 1975, ch 283, §§ 34 to 36.
49-34A-44. Maps of service areas to be filed by electric utilities--Boundaries assigned by commission order--Adjustment of intertwined service areas--Protest of assigned service areas.
On or before January 1, 1976, or, when requested in writing by an electric utility and for good cause shown, and at a further time as the Public Utilities Commission may fix by order, each electric utility shall file with the commission a map or maps showing all its electric lines outside of incorporated municipalities as they existed on March 21, 1975. Each electric utility shall also submit in writing a list of all municipalities in which it provided electric service on March 21, 1975. Where two or more electric utilities serve a single municipality, the commission may require each utility to file with the commission a map showing its electric lines within the municipality.
On or before July 1, 1976, the commission shall, after notice and hearing, establish the assigned service area or areas of each electric utility and shall prepare or cause to be prepared a map or maps to accurately and clearly show the boundaries of the assigned service area of each electric utility.
In those areas where, on March 21, 1975, the existing electric lines of two or more electric utilities were so intertwined that § 49-34A-43 cannot reasonably be applied, the commission shall, after hearing, determine the boundaries of the assigned service areas for the electric utilities involved. In making its decision, the commission shall be guided by the following conditions as they existed on March 21, 1975:
(1) The proximity of existing distribution lines to such assigned territory, including the length of time such lines have been in existence;
(2) The adequacy and dependability of existing distribution lines to provide dependable, high quality retail electric service;
(3) The elimination and prevention of duplication of distribution lines and facilities supplying such territory;
(4) The willingness and good faith intent of the electric utility to provide adequate and dependable electric service in the area to be assigned;
(5) That a reasonable opportunity for future growth within the contested area is afforded each electric utility.
Any electric utility which feels itself aggrieved by reason of an assignment of a service area may protest such assignment within a ninety-day period after issuance of the map of the assigned service areas by the commission and the commission shall have the power, after hearing, to revise or vacate such assigned service area or portions thereof consistent with the provisions of this section and § 49-34A-43.
Source: SL 1965, ch 254, § 14; SDCL, § 49-41-12; SL 1970, ch 261, § 14; SL 1975, ch 283, §§ 32, 33, 37.
49-34A-45. Payments to municipality from revenues of cooperative providing electric service within municipality.
A rural electric cooperative serving less than a majority of customers in a municipality which does not have a municipally owned system, may, at the option of the municipality, pay in addition to other taxes provided by law, an amount to be agreed upon, not to exceed two percent of the total gross revenue collected by the rural electric cooperative for that year, by the electric supplier and the governing body of the municipality. If the parties have not agreed on the amount on or before May first following the calendar year from which the amount is to be paid, the amount to be paid shall be two percent of the total gross revenue collected by the rural electric cooperative from the sale of power distributed to structures and electric service outlets situated within the municipality. The tax imposed by a municipality pursuant to this section may be passed on to the purchaser. Any revenue received by the rural electric cooperative from the tax imposed by a municipality pursuant to this section that is separately stated on the invoice, bill of sale, or similar document is not considered gross receipts as defined in chapter 10-45, 10-46, or 10-52.
Source: SL 1965, ch 254, § 28; SDCL § 49-41-31; SL 1970, ch 261, § 28; SL 1975, ch 283, § 42 (6); SL 2001, ch 256, § 1; SL 2005, ch 249, § 1; SL 2015, ch 232, § 1.
49-34A-46. Payments to municipality owning electric system from revenues of electric utility operating within municipality.
Any electric utility with facilities within the boundaries of a municipality, as they exist from time to time, which has a municipally owned electric system serving over fifty percent of the customers in the municipality, may, at the option of the municipality, pay to the municipality an amount to be agreed upon by the electric supplier and the governing body of the municipality. If the parties have not agreed on the amount on or before May first following the calendar year from which the amount is to be paid, the amount to be paid shall be four percent of the total gross revenue collected by the electric supplier from the sale of power delivered to structures and electric service outlets situated within the municipality during the year for which the amount is paid. The tax imposed by a municipality pursuant to this section may be passed on to the purchaser. Any revenue received by the electric utility from the tax imposed by a municipality pursuant to this section that is separately stated on the invoice, bill of sale, or similar document is not considered gross receipts as defined in chapter 10-45, 10-46, or 10-52.
Source: SL 1965, ch 254, § 29; SDCL § 49-41-32; SL 1970, ch 261, § 29; SL 1975, ch 283, § 42 (6); SL 2001, ch 256, § 2; SL 2015, ch 232, § 2.
49-34A-47. Time of payments to municipality.
The amounts due in §§ 49-34A-45 and 49-34A-46 shall be paid on or before May second following the end of the calendar year for which the payment is being made.
Source: SL 1965, ch 254, §§ 28, 29; SDCL, §§ 49-41-31, 49-41-32; SL 1970, ch 261, §§ 28, 29; SL 1975, ch 283, § 42 (6).
49-34A-48. Electric utility's right to continue service in area annexed to municipality.
The inclusion by incorporation, consolidation, or annexation of any part of the assigned service area of an electric utility within the boundaries of any municipality shall not in any respect impair or affect the rights of the electric utility to continue and extend electric service at retail throughout any part of its assigned service area unless a municipality which owns and operates an electric utility elects to purchase the facilities and property of the electric utility as provided in §§ 49-34A-49 to 49-34A-55, inclusive.
Source: SL 1965, ch 254, § 10; SDCL, § 49-41-9; SL 1970, ch 261, § 10; SL 1975, ch 283, § 41.
49-34A-49. Municipal offer to purchase electric facilities in annexed area.
Notwithstanding the provisions of § 49-34A-42, whenever a municipality which owns and operates an electric utility extends its corporate boundaries through annexation or consolidation, such municipality shall either offer to purchase any electric utility properties and service rights within the annexed areas owned by any electric utility, or permit such utility to serve and expand in the annexed area, as provided in this chapter. The municipality shall notify the affected electric utility in writing of the boundaries of the annexed area and shall indicate such area on appropriate maps.
Source: SL 1975, ch 283, § 42.
49-34A-50. Purchase price for electric facilities in area annexed by municipality.
If a municipality described by § 49-34A-49 elects to purchase, the municipality shall, within one year following annexation, offer to purchase the electric distribution properties of the utility located within the annexed area, together with all of the utility's rights to serve within such area, for a cash consideration which shall consist of the present-day reproduction cost, new, of the facilities being acquired, less depreciation computed on a straight-line basis; plus an amount equal to the cost on a nonbetterment basis of constructing any necessary facilities to reintegrate the system of the utility outside the annexed area after detaching the portion to be sold; plus as compensation for service rights, an annual amount equal to the sum of twenty-five percent of the gross revenues received from power sales to consumers of electric power within the annexed area. The obligation of the annexing municipality to compensate the utility for service rights shall continue for eleven years from the date of the offer to purchase by the annexing municipality. During the eleven-year period, compensation for service rights to any one customer location within the annexed area shall be paid by the annexing municipality for a period of seven years or until the expiration of the eleven-year period, whichever is less. Gross revenues received shall be determined by applying the rate in effect by the municipality at the time of purchase.
Source: SL 1975, ch 283, § 42 (2); SL 1992, ch 330, § 1; SL 2009, ch 239, § 1.
49-34A-51. Application for determination by commission of price for municipal purchase of electric facilities in annexed area.
In the event the municipality and the electric utility involved are unable to agree as to the amount of the payment specified in § 49-34A-50, the municipality or the electric utility may file an application with the Public Utilities Commission requesting that the commission, after notice and hearing, determine the amount of the payment in accordance with the provisions of § 49-34A-50.
Source: SL 1975, ch 283, § 42 (3).
49-34A-52. Acknowledgment by utility of municipal offer to purchase facilities in annexed area--Obligations of parties.
The electric utility, within ninety days after receipt of an offer by the annexing municipality to purchase the utility's electric distribution properties and service rights within the annexed area, shall signify in writing its acknowledgment of the offer, and the parties shall proceed to act. The annexing municipality shall then be obligated to buy and pay for, and the utility shall be obligated to sell to the municipality such properties and rights free and clear of all mortgage liens and encumbrances for the aforesaid cash consideration computed and payable as provided in § 49-34A-50.
Source: SL 1975, ch 283, § 42 (4).
49-34A-53.1. Purchase of facilities in territory annexed after July 1, 1975--Time limit--Determination of gross revenue.
Any municipality that has annexed territory subsequent to July 1, 1975, and that did not elect to purchase the facilities in such territory pursuant to the provisions of §§ 49-34A-49 to 49-34A-52, inclusive, may, within two years from July 1, 1992, elect to purchase the facilities in such annexed territory subject to the provisions of §§ 49-34A-49 and 49-34A-50, except that gross revenues received shall be determined by applying the rate in effect by the purchasing municipality at the time of purchase. Any municipality which chooses not to purchase such facilities within the two-year period is precluded from thereafter purchasing such facilities, except pursuant to the provisions of § 49-34A-55.
Source: SL 1992, ch 330, § 3.
49-34A-54. Purchase by utility of areas disannexed by municipality.
If any annexing municipality shall contract its boundaries so as to exclude from its corporate limits any territory, the utility may elect within sixty days thereafter to purchase from such municipality and such municipality shall, notwithstanding any other laws, thereupon sell and convey to the utility the electric distribution properties and service rights of the municipality in any part of the excluded area which the said electric utility had previously served; upon the same procedures set forth in §§ 49-34A-50 to 49-34A-52, inclusive.
Source: SL 1975, ch 283, § 42 (7).
49-34A-55. Sale or exchange of rights and property allowed between municipalities and utilities.
Nothing contained in §§ 49-34A-42 to 49-34A-44, inclusive, and 49-34A-48 to 49-34A-57, inclusive, prohibits electric utilities from buying, selling, or exchanging electric distribution properties, service rights and other rights, property, and assets by mutual agreement, subject to approval of the commission. Any agreement, pursuant to this section, which changes assigned service areas shall be filed and approved by the commission before it may become effective. The commission's approval of such agreements shall be based on the public interest. The factors to consider shall include the elimination or avoidance of unnecessary duplication of facilities, providing adequate electric service to all areas and customers affected, and the promotion of the efficient and economical use and development of the electric systems of the contracting electric utilities.
Source: SL 1975, ch 283, § 42 (8); SL 1991, ch 386, § 5.
49-34A-56. Large new customers not required to take service from assigned utility--Notice and hearing by commission--Factors considered.
Notwithstanding the establishment of assigned service areas for electric utilities provided for in §§ 49-34A-43 and 49-34A-44, new customers at new locations which develop after March 21, 1975, located outside municipalities as the boundaries thereof existed on March 21, 1975, and who require electric service with a contracted minimum demand of two thousand kilowatts or more shall not be obligated to take electric service from the electric utility having the assigned service area where the customer is located if, after notice and hearing, the Public Utilities Commission so determines after consideration of the following factors:
(1) The electric service requirements of the load to be served;
(2) The availability of an adequate power supply;
(3) The development or improvement of the electric system of the utility seeking to provide the electric service, including the economic factors relating thereto;
(4) The proximity of adequate facilities from which electric service of the type required may be delivered;
(5) The preference of the customer;
(6) Any and all pertinent factors affecting the ability of the utility to furnish adequate electric service to fulfill customers' requirements.
Source: SL 1975, ch 283, § 44.
49-34A-57. Extension of lines to serve utility's or municipality's own property.
Notwithstanding the provisions in §§ 49-34A-43 and 49-34A-44, any electric utility may extend electric lines for electric service to its own utility property and facilities. A municipally owned electric utility may also extend its electric lines to serve its own public service facilities such as water and sewage systems, landfills and airports.
Source: SL 1975, ch 283, § 44.
49-34A-58. Adequacy of service determined by commission--Notice and hearing--Order to correct inadequacy--Transfer of rights on failure to comply.
The Public Utilities Commission may, after a hearing had upon due notice, make such findings as may be supported by proof as to whether any electric utility operating in an assigned territory is rendering or proposes to render adequate service to a customer, and in the event the commission finds that such electric utility is not rendering or does not propose to render adequate service, the commission may enter an order specifying in what particular said electric utility has failed to render or to propose to render adequate service in order that such failure be corrected within a reasonable time, such time to be fixed in such order. If the electric utility so ordered to correct such failure fails to comply with such order, the commission may authorize another electric utility to furnish retail service to such customer.
Source: SL 1975, ch 283, § 39.
49-34A-59. Notice and hearing on violation of service area provisions--Time for decision.
Upon the filing of an application under § 49-34A-58 or upon complaint by an affected utility that the provisions of §§ 49-34A-42 to 49-34A-57, inclusive, have been violated, the commission shall, after notice and opportunity for hearing, issue its decision within sixty days after the filing of the application or complaint. The commission may extend the time for a decision if requested by a party to the proceeding and the commission finds good cause to grant the extension.
Source: SL 1975, ch 283, § 40; SL 2010, ch 223, § 1.
49-34A-61. Burden of proof on party seeking to modify or vacate commission order.
In all proceedings before the Public Utilities Commission in which the modification or vacation of any order of the commission is sought, the burden of proof shall be on the person seeking such modification or vacation.
Source: SL 1975, ch 283, § 50.
49-34A-61.1. Rehearings--Application--Grant or refusal--Time--Orders not stayed unless commission directs.
Any party, as defined in the rules and regulations promulgated by the Public Utilities Commission, to a proceeding before the commission may within thirty days after the entry of the order apply for a rehearing. The commission shall either grant or refuse an application for hearing within thirty days after the filing of the application. A failure by the commission to act upon such application for rehearing within the period shall be deemed a refusal thereof. Neither the filing of an application for rehearing nor the granting thereof shall stay the effectiveness of an order unless the commission so directs.
Source: SL 1976, ch 296, § 26.
49-34A-62. Parties entitled to rehearings and appeals--Procedure.
Persons or corporations entitled to and procedures for a rehearing on, or an appeal from, commission decisions and orders shall be those specified in chapter 1-26.
Source: SL 1965, ch 254, § 23; SDCL, § 49-41-24; SL 1970, ch 261, § 23; SL 1975, ch 283, §§ 30, 46; SL 1976, ch 296, § 27.
49-34A-65. Bond required when stay or suspension granted--Other security in addition or in lieu--Refund of increase not allowed on appeal.
Notwithstanding § 1-26-32, in case an order of the Public Utilities Commission is stayed or suspended, the court shall require a bond with good and sufficient surety, conditioned that the utility or any other party petitioning for review shall answer for all damages caused by the delay in enforcing the order of the commission and for all compensation for the difference between whatever sums for transmission or service any person is compelled to pay pending review proceedings and the sum the person or corporation would have been compelled to pay had the commission's order not been stayed or suspended. The court may, in addition or in lieu of the bond, require other further security for the payment of the excess damages or charges it deems proper. If a party other than a utility appeals from the decision of the commission, the commission may by further order require such utility to refund, with interest, the portion, if any, of an increase which is not allowed by the final decision of the courts after all appeals are concluded.
Source: SL 1975, ch 283, § 47; SL 1981, ch 338.
49-34A-66. Violation of law or commission order--Civil penalty.
Any person who intentionally violates any provision of this chapter, or who intentionally fails, omits, or neglects to obey, observe, or comply with any lawful order, or any part or provision thereof, of the Public Utilities Commission shall be subject to a civil penalty of not less than one hundred dollars nor more than one thousand dollars for each violation.
Source: SL 1975, ch 283, § 51; SL 1983, ch 15, § 144; SL 1983, ch 331, § 13.
49-34A-67. Each violation or day's continuation as separate offense.
Every violation of the provisions of this chapter or of any lawful order of the Public Utilities Commission, or any part or portion thereof by any person, is a separate and distinct offense, and in case of a continuing violation after a first conviction thereof each day's continuation thereof shall be deemed to be a separate and distinct offense.
Source: SL 1975, ch 283, § 52.
49-34A-68. Penalties cumulative--Single action does not bar other remedies.
All penalties accruing under this chapter shall be cumulative, and a suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or forfeiture or be a bar to any criminal prosecution against any utility or any officer, director, agent, or employee thereof or any person.
Source: SL 1975, ch 283, § 53.
49-34A-69. Commission to refer violations to attorney general.
Whenever the Public Utilities Commission shall be of the opinion that any person is failing or omitting or is about to fail or omit to do anything required of it by the provisions of this chapter or by any order of the commission, or is doing anything or about to do anything, or permitting anything or about to permit anything to be done, contrary to or in violation of this chapter or of any order of the commission, it shall refer the matter to the attorney general who shall take appropriate legal action.
Source: SL 1975, ch 283, § 48.
49-34A-70. Preference on calendar for proceedings under chapter.
All actions and proceedings under this chapter, and all actions or proceedings to which the Public Utilities Commission or the State of South Dakota may be parties, and in which any question arises under this chapter, or under or concerning any order or decision of the commission, shall be preferred over all other civil causes, except election causes, irrespective of position on the calendar.
Source: SL 1975, ch 283, § 49.
49-34A-71. Chapter complete--Laws in conflict repealed.
This chapter shall be complete in itself and no other South Dakota statute shall be construed as applicable to the supervision or regulations of electric utilities by the Public Utilities Commission. Any law of this state in conflict with this chapter is hereby repealed insofar as it shall pertain to the regulation of electric utilities as defined in this chapter.
Source: SL 1975, ch 283, § 54.
49-34A-72. Commission participation in federal proceedings--Recovery of expenses.
If the commission intervenes or otherwise participates in rate, certificate, or related proceedings before a federal agency and the commission's intervention or participation results, after final litigation, in a refund in wholesale rates to a public utility serving customers in South Dakota, the commission shall be reimbursed from the amount refunded to the South Dakota public utility in an amount equal to the litigation expenses reasonably incurred by the commission. The litigation expenses shall include reasonable attorney's fees, expert witness fees, and all other associated costs. The commission may assess the public utility for the amount of the reimbursement provided for in this section, and the reimbursement assessed shall be deposited in the commission's gross receipts tax fund established pursuant to § 49-1A-2.
Source: SL 1983, ch 342; SL 1991, ch 381, § 14; SL 1994, ch 352, § 8.
49-34A-73. Phase in rate plan for rate increases due to plant additions.
Notwithstanding anything in this chapter to the contrary, an electric utility that is subject to rate regulation by the commission and plans plant additions that are expected to have a material impact on rates may make application to the commission for a phase in rate plan to provide for the phase in of expected rate increases resulting from plant additions. The plan may provide for any of the following:
(1) Rate increases to be incrementally phased in prior to the commencement of commercial operation of the plant additions;
(2) To the extent rate increases for plant additions are allowed prior to commercial operation, restrictions on the capitalization of allowance for funds used during construction for the plant additions;
(3) Restrictions on other rate increases; and
(4) Any other conditions which benefit the public interest and may be imposed by the commission consistent with the findings in § 49-34A-74.
Source: SL 1992, ch 331, § 1; SL 2012, ch 230, § 2; SL 2015, ch 233, § 1.
49-34A-73.1. Plant additions defined.
For purposes of §§ 49-34A-73 to 49-34A-78, inclusive, plant additions are investments in fixed generation, transmission, and distribution assets, whether purchased or constructed, including operations and maintenance expenses directly related to those fixed assets, real property, and new power purchases.
Source: SL 2012, ch 230, § 1.
49-34A-74. Approval of phase in rate plan--Conditions.
The commission may approve a phase in rate plan as provided in § 49-34A-73 if:
(1) The electric utility makes application for a phase in rate plan prior to the commencement of or during construction, or prior to acquisition of the plant additions;
(2) The electric utility files with the application a full cost of service analysis as required for general rate increases including a projection of costs and revenue requirements to the date of the anticipated commercial operation of the plant additions or through the term of the new power purchases;
(3) The commission affords an opportunity for a hearing with notice given as required for any rate increase; and
(4) The commission finds that the phase in rate plan is likely to enhance adequate utility service, rate stability, the financial stability of the electric utility, reasonable capital costs, just and reasonable rates, a fair rate of return, and other considerations that benefit the public interest.
Source: SL 1992, ch 331, § 2; SL 2012, ch 230, § 3; SL 2015, ch 233, § 2.
49-34A-75. Review of reasonableness of rates under phase in rate plan--Adjustment.
At any time prior to one year after the conclusion of a phase in rate plan, the commission, upon its own motion or upon petition of the electric utility, may examine the reasonableness of the utility's rates under the plan, and adjust rates as necessary. Any phase in rate plan is subject to annual review. The electric utility shall file annually an abbreviated cost of service analysis showing that year's revenues, costs and revenue requirements, and a report of the progress of the construction or acquisition of the plant additions showing accumulative construction or acquisition costs for the year and updated cost projections to complete the plant additions.
Source: SL 1992, ch 331, § 3; SL 2012, ch 230, § 4.
49-34A-76. Filing of general rate case after end of phase in rate plan--Exception.
Within twelve months after the end of the phase in rate plan, the electric utility shall file a general rate case with a full cost of service analysis including the plant additions, unless, upon motion, the commission determines that a general rate case would not be likely to result in material changes to the rates in place under the phase in rate plan, in which event the rates under the phase in rate plan will remain in effect until changed by further order of the commission.
Source: SL 1992, ch 331, § 4; SL 2012, ch 230, § 5.
49-34A-77. Filing fee for phase in rate plan.
Upon filing an application for a phase in rate plan, the electric utility shall pay a filing fee to be determined by the commission in an amount not to exceed two hundred fifty thousand dollars. The filing fee may also be used for any annual reviews pursuant to § 49-34A-75.
Source: SL 1992, ch 331, § 5; SL 1994, ch 352, § 11; SL 2012, ch 230, § 6.
49-34A-78. Nonapproval of application for phase in rate plan.
If the commission does not approve an application for a phase in rate plan as defined in § 49-34A-73, the electric utility may not be prohibited from making, acquiring, or constructing plant additions and requesting and obtaining rate adjustments as authorized by this chapter.
Source: SL 1992, ch 331, § 6; SL 2012, ch 230, § 7.
49-34A-79. Public or electric utilities authorized to remove certain obstructions.
Any public utility or electric utility as defined in § 49-34A-1 and any utility operated by any political subdivision of the state may remove or alter any vegetation or other material if the utility determines that such removal or alteration is reasonably necessary for the safe repair, use, operation, or maintenance of the utility's electric or gas transmission or distribution lines.
Source: SL 1999, ch 229, § 1.
49-34A-80. Certain commercial small power production facilities subject to 49-34A-80 to 49-34A-92.
Any commercial small power production facility, utilizing renewable resources, such as sun, wind, geothermal, or biomass, that begins generating electricity after June 30, 2001, produces ten megawatts or less of electricity as measured by nameplate rating, and is located within one county and owned by a natural person, corporation, nonprofit or for profit business organization, or tribal council (if the facility is located outside the boundaries of the reservation), irrigation district, drainage district, or other political subdivision or agency of the state authorized by statute to carry on the business of developing, transmitting, utilizing, or distributing electric power is subject to the provisions of §§ 49-34A-80 to 49-34A-92, inclusive, for any new or expanded facility.
Source: SL 2001, ch 257, § 1.
49-34A-82. Definitions.
Terms used in §§ 49-34A-80 to 49-34A-92, inclusive, mean:
(1) "Department," the Department of Revenue;
(2) "New or expanded facility," a new commercial small power production facility as defined in § 49-34A-80 or an addition to an existing commercial small power production facility, the construction or installation of which is subject to contractors' excise tax pursuant to chapter 10-46A or 10-46B;
(3) "Project," the installation or construction of the first ten megawatts of generation capacity of a new or expanded facility;
(4) "Project cost," the amount paid in money for a project;
(5) "Secretary," the secretary of the Department of Revenue.
Source: SL 2001, ch 257, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
49-34A-83. Refund or credit of certain taxes for construction of certain power production facilities.
Any person may apply for and obtain a refund or credit for contractors' excise taxes imposed and paid under the provisions of chapter 10-46A or 10-46B for the construction of a new or expanded facility that is a commercial small power production facility that is defined in § 49-34A-80.
Source: SL 2001, ch 257, § 4.
49-34A-84. Requirements for refund.
The refund pertains only to project costs incurred and paid after July 1, 2001. The refund pertains only to project costs that were incurred and paid within thirty-six months of the approval of the application required by §§ 49-34A-80 to 49-34A-92, inclusive. No refund may be made unless:
(1) The project costs exceed five hundred thousand dollars; and
(2) The person applying for the refund obtains a permit from the secretary as set forth in § 49-34A-86.
Source: SL 2001, ch 257, § 5.
49-34A-85. Amount of refund.
The amount of the tax refund shall be one hundred percent of the contractor's excise taxes attributed to the project cost, excluding any associated transmission facilities.
Source: SL 2001, ch 257, § 6.
49-34A-86. Application for refund--Refund claim not assignable--Exception.
Any person desiring to claim a refund pursuant to §§ 49-34A-80 to 49-34A-92, inclusive, shall apply for a permit from the secretary at least thirty days prior to commencement of the project. The application for a permit shall be submitted on a form prescribed by the secretary. A separate application shall be made and submitted for each project. Upon approval of the application, the secretary shall issue a permit entitling the applicant to submit refund claims as provided by §§ 49-34A-80 to 49-34A-92, inclusive. The permit or refund claims are not assignable or transferable except as collateral or security pursuant to chapter 57A-9.
Source: SL 2001, ch 257, § 7.
49-34A-87. Secretary to prescribe form and documentation requirements.
Any claim for refund shall be submitted on forms prescribed by the secretary and shall be supported by such documentation as the secretary may require. The secretary may deny any claim where the claimant has failed to provide information or documentation requested or considered necessary by the secretary to determine the validity of the claim.
Source: SL 2001, ch 257, § 8.
49-34A-88. Deadline for submitting claim for refund--Department to withhold percentage of refund.
Any claim for refund shall be submitted to the department on or before the last day of the month following each quarterly period. The secretary shall determine the amount of the tax refund. Ninety percent of the amount of refund shall be paid to the claimant in accordance with §§ 10-59-22 and 10-59-23, and ten percent shall be withheld by the department. No interest shall be paid on the refund amount.
Source: SL 2001, ch 257, § 9.
49-34A-89. Withheld amounts paid at completion of project.
The amounts withheld by the department in accordance with § 49-34A-88 shall be retained until the project has been completed and the claimant has met all the conditions of §§ 49-34A-80 to 49-34A-92, inclusive, at which time all sums retained shall be paid to claimant.
Source: SL 2001, ch 257, § 10.
49-34A-90. Fraudulent claim--Refunded sums constitute lien in favor of state.
If any claim has been fraudulently presented or supported as to any item in the claim, or if the claimant fails to meet all the conditions of §§ 49-34A-80 to 49-34A-92, inclusive, then the claim may be rejected in its entirety and all sums previously refunded to the claimant shall constitute a debt to the state and a lien in favor of the state upon all property and rights to property whether real or personal belonging to the claimant and may be recovered in an action of debt.
Source: SL 2001, ch 257, § 11.
49-34A-91. Right to hearing on denial of refund claim.
Any person aggrieved by the denial in whole or in part of a refund claimed under §§ 49-34A-80 to 49-34A-92, inclusive, may within thirty days after service of the notice of a denial by the secretary, demand and is entitled to a hearing, upon notice, before the secretary. The hearing shall be conducted pursuant to chapter 1-26.
Source: SL 2001, ch 257, § 12.
49-34A-92. Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, concerning the procedures for filing refund claims and the requirements necessary to qualify for a refund.
Source: SL 2001, ch 257, § 13.
49-34A-93. Implementation of and compliance with certain federal energy acts.
The commission may implement and comply with the provisions of the Public Utility Regulatory Policies Act of 1978, as amended to January 1, 2009, the Energy Policy Act of 2005, and the Energy Independence and Security Act of 2007 and may promulgate rules pursuant to chapter 1-26 consistent with these acts. The commission may implement policies or promulgate rules to establish the following:
(1) Standards requiring a public utility to offer each of the utility's customer classes, and provide individual customers upon customer request, a time-based rate schedule under which the rate charged by the electric utility varies during different time periods and reflects the variance, if any, in the utility's costs of generating and purchasing electricity at the wholesale level;
(2) Standards requiring a public utility to make interconnection service available on request to any electric customer that the utility serves;
(3) Standards requiring a public utility to develop a plan to minimize dependence on one fuel source and to ensure that the electric energy it sells to consumers is generated using a diverse range of fuels and technologies, including renewable technologies;
(4) Standards requiring a public utility to develop and implement a ten-year plan to increase the efficiency of its fossil fuel generation;
(5) Standards or policies requiring a public utility to integrate energy efficiency resources into the utility's planning process and to adopt policies establishing cost-effective energy efficiency as a priority resource;
(6) Standards or policies allowing a public utility's rates to align utility incentives with the delivery of cost-effective energy efficiency and promote energy efficiency investments;
(7) Standards or policies requiring prior to investing in nonadvanced grid technologies, that a public utility consider investing in a smart grid system; and
(8) Standards or policies requiring public utilities to provide smart grid information regarding electricity prices, usage, and sources of power to customers.
Any order adopted by the commission prior to January 1, 2006, pursuant to these acts, is hereby validated.
Source: SL 2006, ch 240, § 1; SL 2009, ch 240, § 1.
49-34A-94. Renewable electricity and recycled energy defined.
For the purposes of §§ 49-34A-94 to 49-34A-96, inclusive, renewable electricity and recycled energy include electricity generated from facilities using one or more of the following sources:
(1) Wind that uses wind as the source of energy to produce electricity;
(2) Solar that uses the sun as the source of energy to produce electricity;
(3) Hydroelectric that uses water as the source of energy to produce electricity;
(4) Hydrogen that is generated from one of the sources listed in this section;
(5) Biomass that uses agricultural crops and agricultural wastes and residues, wood and wood wastes and residues, animal and other degradable organic wastes, municipal solid waste, or landfill gas as the fuel to produce electricity;
(6) Geothermal that uses energy contained in heat that continuously flows outward from the earth as the source of energy to produce electricity; and
(7) Recycled energy systems that produce electricity from currently unused waste heat resulting from combustion or other processes and which do not use an additional combustion process. The term does not include any system whose primary purpose is the generation of electricity.
Source: SL 2006, ch 241, § 1; SL 2007, ch 271, § 1; SL 2008, ch 243, § 1.
49-34A-95. Renewable energy credits for electricity authorized.
The commission may establish, or allow participation in, a system of renewable energy credits for electricity generated from renewable electricity or recycled energy. A renewable energy credit system shall track, record, and verify the trading of credits for electricity generated from renewable electricity and recycled energy sources among electric generators, utilities, and other interested entities within the state and with similar entities in other states. Sections 49-34A-94 to 49-34A-96, inclusive, apply to any provider of electricity that generates electricity from renewable electricity or recycled energy.
Source: SL 2006, ch 241, § 2.
49-34A-96. Promulgation of rules regarding renewable energy credit system.
The commission may promulgate rules pursuant to chapter 1-26 concerning:
(1) Requirements for tracking, recording, and verifying the trading of renewable energy credits;
(2) Requirements for compliance with a renewable energy credit system;
(3) Requirements for certification of renewable energy credits;
(4) Requirements for participation in a regional system that relates to renewable energy credits; and
(5) Requirements regarding the eligibility of a provider of electricity generated from renewable electricity or recycled energy to participate in the system.
Source: SL 2006, ch 241, § 3.
49-34A-97. Approval of tariff mechanisms for automatic annual adjustment of charges for environmental improvements.
Notwithstanding any other provisions of this chapter, the commission may approve a tariff mechanism for the automatic annual adjustment of charges for the jurisdictional capital costs and operating expenses incurred by a public utility for environmental improvements to its existing electric generation facilities. For the purposes of §§ 49-34A-97 to 49-34A-100, inclusive, environmental improvements include any requirements under the Clean Air Act, the Clean Water Act, or any other federal law or rule, or any state law or rule implementing a federal law or rule, or voluntary environmental measures designed to protect the environment.
Source: SL 2007, ch 272, § 1.
49-34A-98. Approval, rejection, or modification of certain electric service tariffs.
Upon filing of an application consistent with rules promulgated by the commission by any public utility providing electric service, the commission may approve, reject, or modify, after notice and opportunity for hearing, a tariff that:
(1) Allows the public utility to recover on a timely basis the costs and expenses net of revenues of environmental improvements described in § 49-34A-97;
(2) Allows a return on investment at the level approved in the public utility's last general rate case, unless a different return is found to be consistent with the public interest;
(3) Provides a current return on construction work in progress, if the recovery from retail customers for the allowance for funds used during construction is not obtained through any other mechanism;
(4) Allocates project costs and expenses appropriately between wholesale and retail customers; and
(5) Terminates recovery once costs and expenses have been fully recovered or have otherwise been reflected in the public utility's general rates.
Source: SL 2007, ch 272, § 2.
49-34A-99. Annual rate adjustment filings for certain electric service tariffs.
A public utility may file annual rate adjustments to be applied to customer bills paid under the tariff approved pursuant to § 49-34A-98. In the utility's filing, the public utility shall provide:
(1) A description of and context for the costs and expenses of environmental improvements included for recovery;
(2) A schedule for implementation of applicable projects;
(3) The public utility's costs and expenses for these projects;
(4) A description of the public utility's efforts to ensure the lowest reasonable costs to ratepayers for the project;
(5) Calculations to establish that the rate adjustment is consistent with the terms of the tariff established in § 49-34A-98; and
(6) Other information requested by the commission.
Source: SL 2007, ch 272, § 3.
49-34A-100. Approval, rejection, or modification of annual rate adjustment.
Upon receiving filing under § 49-34A-99 for a rate adjustment pursuant to the tariff established in § 49-34A-98, the commission may approve, reject, or modify the annual rate adjustment after notice and opportunity for hearing. In making its decision, the commission shall consider whether the costs and expenses included for recovery through the tariff were or are expected to be prudently incurred, will achieve environmental improvements at the lowest reasonable cost to ratepayers, and will allow the public utility to recover costs consistent with its allowed return on equity. To the extent the environmental improvement may affect the following, the commission may also consider whether the environmental improvement is likely to enhance adequate utility service, rate stability, the financial stability of the public utility, reasonable capital costs, just and reasonable rates, a fair rate of return, and other considerations that benefit the public interest.
Source: SL 2007, ch 272, § 4.
49-34A-101. State renewable, recycled, and conserved energy objective established.
There is hereby established a state renewable, recycled, and conserved energy objective that ten percent of all electricity sold at retail within the state by the year 2015 be obtained from renewable, recycled, and conserved energy sources. In the case of renewable and recycled energy, the objective shall be measured by qualifying megawatt hours delivered at retail or by certificates representing credits purchased and retired to offset nonqualifying retail sales. In the case of conserved energy, the objective shall be measured by methods established by rules promulgated by the commission pursuant to chapter 1-26. This objective is voluntary, and there is no penalty or sanction for a retail provider of electricity that fails to meet this objective. The objective applies to each retail provider of electricity in the state, regardless of the ownership status of the electricity retailer. Any municipal or cooperative utility that receives wholesale electricity through a municipal power agency or generation and transmission cooperative may aggregate the utility's renewable, recycled, and conserved energy objective resources to meet this objective.
Source: SL 2008, ch 244, § 1; SL 2009, ch 241, § 1.
49-34A-102. Qualifications for meeting renewable, recycled, and conserved energy objective.
Electricity qualifies for meeting the state renewable, recycled, and conserved energy objective if the source meets the requirements of §§ 49-34A-94 to 49-34A-96, inclusive, and the commission's rules for tracking, recording, and verifying renewable energy certificates. Electricity also qualifies for meeting the state renewable, recycled, and conserved energy objective if the source is conserved energy and meets the requirements established by rules promulgated by the commission pursuant to chapter 1-26.
Source: SL 2008, ch 244, § 2; SL 2009, ch 241, § 2.
49-34A-103. Calculation of amount of electricity from renewable, recycled, and conserved energy source.
For the purpose of calculating the amount of electricity from a renewable, recycled, and conserved energy source needed to meet the state renewable and recycled energy objective, a retail provider may deduct from the provider's baseline of total retail sales the proportion of electricity obtained from a hydroelectric facility with an inservice date before July 1, 2008.
Source: SL 2008, ch 244, § 3; SL 2009, ch 241, § 3.
49-34A-104. Evaluation of use as reasonable and cost effective.
Before using new renewable, recycled, and conserved energy after July 1, 2008, to meet the objective, the retail provider or the provider's generation supplier shall make an evaluation to determine if the use of new renewable, recycled, and conserved energy is reasonable and cost effective considering other electricity alternatives. After making such an evaluation and considering the state renewable, recycled, and conserved energy objective, the retail provider or the provider's generation supplier may use the electricity alternative that best meets the provider's resource or customer needs.
Source: SL 2008, ch 244, § 4; SL 2009, ch 241, § 4.
49-34A-105. Annual reports concerning renewable, recycled, and conserved energy objective.
Beginning on July 1, 2009, each retail provider shall annually report to the commission on the provider's energy sales during the twelve month period ending on the preceding December thirty-first. This report shall include information regarding qualifying electricity delivered and renewable and recycled energy certificates purchased and retired as a percentage of annual retail sales, the amount of conserved energy as a percentage of annual retail sales, and a brief narrative report that describes steps taken to meet the state renewable, recycled, and conserved energy objective over time and identifies any challenges or barriers encountered in meeting the objective. The last annual report shall be made on July 1, 2017. The commission shall make the data and narrative reports available and accessible to the public on the internet. The commission shall compile the data obtained from the reports and submit the data to the Legislature by the following January first. A distribution cooperative may aggregate the cooperative's reporting through generation and transmission cooperatives and a municipal utility may aggregate the utility's reporting through a municipal power agency.
Source: SL 2008, ch 244, § 5; SL 2009, ch 241, § 5.
49-34A-106. Purchase and retirement of renewable energy and recycled energy credits.
A portion or all of the renewable energy and recycled energy objective may be met by the purchase and retirement of renewable energy and recycled energy certificates representing credits from a qualified source and facility pursuant to §§ 49-34A-101 to 49-34A-106, inclusive. Renewable energy and recycled energy certificates do not need to be acquired from an in-state facility.
Source: SL 2008, ch 244, § 6.
49-34A-107. Separation and protection of assets of gas and electric utilities.
Unless the commission otherwise orders:
(1) A public utility shall hold all owned or operated public utility assets in one or more legal entities separate and segregated from the legal entities of any nonutility subsidiaries or affiliates;
(2) All secured debt of a public utility may be used only for public utility purposes. If more than twenty percent of a public utility's secured assets are divested, the debt shall follow the assets or be retired in the same proportion as the divested assets; and
(3) No public utility may extend credit to any of its nonutility subsidiaries or affiliates, pledge the assets of the public utility as collateral for the use or benefit of any of its nonutility subsidiaries or affiliates, or guarantee any debt or obligations of any of its nonutility subsidiaries or affiliates.
Any public utility which does not comply with the provisions of this section shall have two years within which to become compliant. Notwithstanding any provision of this section, after notice and opportunity for hearing, the commission may grant a waiver of any provision of this section if the commission finds a waiver would not pose an undue risk to the operation of the public utility and is in the public interest.
Source: SL 2008, ch 245, § 1.
49-34A-108. Electric utility to file rates for purchases of electricity produced by small renewable power facilities.
Each electric utility shall file with the commission the electric utility's minimum rates for purchases of electricity generated from renewable resources, as defined by § 49-34A-94, and produced by a small renewable power facility that has a capacity of one hundred kilowatts or less. Except for a public utility's standard avoided cost rates set pursuant to the Public Utility Regulatory Policies Act of 1978, as amended to January 1, 2010, a rate filed under this section is not subject to commission approval.
Source: SL 2010, ch 224, § 1.
49-34A-109. Definitions.
Terms used in §§ 49-7A-15, 43-13-25, and 49-34A-109 to 49-34A-111, inclusive, mean:
(1) "Farm tap," a natural gas piping connection to an interstate or intrastate transmission pipeline, that is made available to a farm tap customer;
(2) "Farm tap customer," a person who receives natural gas through a farm tap distribution system;
(3) "Farm tap distribution system," a customer owned pipeline system that extends from an interstate or intrastate transmission pipeline to deliver natural gas to a farm tap customer; and
(4) "Farm tap service provider," any third party provider of farm tap distribution system services to:
(a) A farm tap customer; or
(b) An interstate or intrastate natural gas transmission pipeline holding one or more farm tap easements.
Source: SL 2017, ch 197, § 1.
49-34A-110. Responsibility for safety and reliability of farm tap distribution system.
The farm tap customer is responsible for the safety and reliability of the farm tap distribution system, unless the farm tap customer has contracted with or transferred ownership of his farm tap distribution system to a farm tap service provider pursuant to a written agreement which expressly transfers the responsibility for the safety and reliability of the farm tap distribution system to the farm tap service provider.
Source: SL 2017, ch 197, § 3.
49-34A-111. Liability of farm tap service provider.
The farm tap service provider is not liable for damages related to or arising out of a farm tap or a farm tap distribution system, unless the damages are solely caused by the negligence of the farm tap service provider.
Source: SL 2017, ch 197, § 4.
49-34A-116. Electric vehicle charging station--Electric utility--Exception.
A person that owns or operates an electric vehicle charging station to resell or provide electricity to the public exclusively for electric vehicle charging is not an electric utility if the person has purchased the electricity from an electric utility that is engaging in the retail sale of electricity within the utility's assigned service area.
Source: SL 2022, ch 171, § 1.
