Intent for Energy Facility Site Locations.
The policy of Washington regarding energy facility site locations includes references to:
The Energy Facility Site Evaluation Council.
The Energy Facility Site Evaluation Council (EFSEC) was established in 1970 to provide a single siting process for major energy facilities located in the state. The EFSEC coordinates all evaluation and licensing steps for siting certain energy facilities, as well as specifies the conditions of construction and operation. After evaluating an application, the EFSEC submits a recommendation either approving or rejecting an application to the Governor, who makes the final decision on site certification. This recommendation must be reported to the Governor within 12 months of application receipt, or at a later time if agreed to by the applicant and EFSEC. If approved by the Governor, a site certification agreement is issued in lieu of any other individual state or local agency permits.
The Utilities and Transportation Commission (UTC) provides all administrative and staff support for the EFSEC. The UTC has supervisory authority over the staff of the EFSEC. The EFSEC otherwise retains its independence in exercising its powers, functions, and duties and its supervisory control over non-administrative staff support.
The Governor, with the advice and consent of the Senate, appoints the EFSEC Chair (Chair). The Chair or the Chair's designee executes all official documents, contracts, and other materials on behalf of the EFSEC. Along with the Chair, the permanent membership of the EFSEC consists of the directors, administrators, or their designees, of the following:
The directors, administrators, or their designees, of the following may participate as EFSEC members in a specific site certification proceeding at their own discretion, provided they elect to participate no later than 60 days after an application is filed:
The legislative authority of every county and city in which an application for a proposed site is filed must appoint a member or designee as a voting member to the EFSEC. Any port district in which an application for a proposed port facility is filed must appoint a member or designee as a nonvoting member to the EFSEC. However, if the port district is an applicant for a port facility, the port may not appoint a member or designee to the EFSEC for review of that application. For cities, counties, and port districts, the appointed member or designee only sits with the EFSEC from the time the proposed site is considered until there is a final acceptance or rejection of the proposed site.
Among the EFSEC's enumerated powers are the authorities to:
The State Environmental Policy Act.
The State Environmental Policy Act (SEPA) establishes a review process for state and local governments to identify environmental impacts that may result from governmental decisions, such as the issuance of permits or the adoption of land use plans. The SEPA environmental review process involves a project proponent or the lead governmental agency completing an environmental checklist to identify and evaluate probable environmental impacts. If an initial review of the checklist and supporting documents results in a determination that the government decision has a probable significant adverse environmental impact (threshold determination), the proposal must undergo a more comprehensive environmental analysis in the form of an Environmental Impact Statement (EIS). The lead agency is responsible for complying with SEPA's procedural requirements, including making a threshold determination and preparing the EIS when one is required.
Under SEPA rules adopted by the Department of Ecology (Ecology), the EFSEC is the lead agency for all government actions for energy facilities that require certification under EFSEC's siting laws and the EFSEC manager is responsible for coordinating activities to comply with the SEPA.
Energy Facilities Covered Under Energy Facility Site Evaluation Council Siting Laws.
The laws that provide for a facility to seek certification through the EFSEC process apply to the construction, reconstruction, and enlargement of energy facilities, biorefineries, and electrical transmission facilities, with many specifications. For example, the EFSEC has siting authority over energy facilities including nuclear power plants of any size, thermal electric power plants with a generating capacity of 350 megawatts or greater, and other facilities that meet specified capacity thresholds to receive, store, process, or produce various energy types. Energy facilities of any size that exclusively use alternative energy resources such as wind or solar energy may opt into the EFSEC review and certification process. The EFSEC's jurisdiction does not extend to hydropower facilities or facilities operated by and for the armed services or by other federal authority for national defense.
Electrical transmission facilities are covered under the EFSEC siting process if:
Study of Potential Sites.
Upon the request of a potential applicant, the EFSEC may conduct a preliminary study of any potential site prior to receiving an application for site certification. After the EFSEC receives a request to study a potential site, it must commission an independent consultant to conduct the study, which must include an analysis of environmental impact information. The applicant must pay a fee of $10,000 toward the cost of the study. If the study costs more, the applicant must give approval prior to paying more than $10,000, and if the study costs less, unexpended funds are returned to the applicant. The EFSEC may cooperate with local government entities where the potential site is located, as well as federal and state agencies, and interested municipal and public corporations.
This preliminary EFSEC study may be used in place of the EIS that is required by other branches of government under SEPA.
Public Hearings.
In reviewing an application for site certification, the EFSEC must hold three sequential public hearings:
Expedited Processing of Applications.
A person may apply to the EFSEC for expedited processing of their application for certification of an energy facility or alternative energy resource facility. The EFSEC may grant expedited processing if it finds that: (1) the environmental impact of the proposed facility is not significant or will be mitigated to a nonsignificant level under SEPA review; and (2) the project is in compliance with local land use plans or zoning ordinances.
If an application for a project's certification is granted expedited processing, the EFSEC is not required to: (1) commission an independent study to further measure the consequences of the proposed facility on the environment; or (2) hold an adjudicative proceeding on the application.
Payments to the Utilities and Transportation Commission on Behalf of the Energy Facility Site Evaluation Council.
On behalf of the EFSEC, the UTC must receive deposits and reimbursements from preapplicants, applicants, and certificate holders:
The receipts from all applicants must be credited to the State General Fund and only spent by the EFSEC for authorized purposes.
Clean Fuels Program.
Ecology is directed to adopt a rule establishing a Clean Fuels Program (CFP) limiting the greenhouse gas (GHG) emissions attributable to each unit of transportation fuel (carbon intensity) to 20 percent below 2017 levels by 2038. The rule adopted by Ecology to implement the CFP must include standards for assigning levels of GHG emissions attributable to transportation fuels based on a lifecycle analysis that considers emissions from the production, storage, transportation, and combustion of the fuels, and associated changes in land use. Ecology must establish separate carbon intensity standards for gasoline and its substitutes and diesel and its substitute.
Intent for Energy Facility Site Locations.
The policy of Washington regarding energy facility site locations adds reference to:
The Energy Facility Site Evaluation Council.
The Energy Facility Site Evaluation Council (EFSEC) is established as a stand-alone entity of state government, and is no longer housed within the Utilities and Transportation Commission (UTC). The transfer of EFSEC-related authority from the UTC to the new EFSEC agency includes all administrative powers, duties, and functions of the UTC that are performed for the EFSEC, and employees that carry out these responsibilities, along with all related materials and property. All financial assets held by the UTC and appropriations made to the UTC for the benefit of the EFSEC must be transferred to a new EFSEC account created to carry out the EFSEC siting laws. All pending business and existing contracts and obligations must continue to be performed by the EFSEC.
The EFSEC Chair (Chair) must appoint a director to oversee operations and carry out responsibilities for energy facility siting. The director must employ administrative staff. The director, personal secretary to the director, council chair, and not more than two professional staff are exempted from the Civil Service Law. The Chair may delegate its council appointing authority to the director.
Along with the Chair, the permanent membership of the EFSEC consists of:
The appropriate elected governing body or executive official of up to two federally recognized tribes that possess resources, rights, or interests reserved or protected by federal treaty, statute, or executive order in the area where an energy facility is proposed to be located may each appoint a member or designee as a voting member of the EFSEC. These appointees may sit with the EFSEC only from when the EFSEC begins considering such a proposed site until there has been a final acceptance or rejection of the proposed site. For the EFSEC's 12-month reporting requirement to the Governor to apply, an application must be deemed complete by the director.
A quorum of the EFSEC consists of a majority of members appointed for business to be conducted.
The EFSEC's authorities are amended so the EFSEC may:
Energy Facilities Covered Under Energy Facility Site Evaluation Council Siting Laws.
Clean Energy Product Manufacturing Facilities.
A person proposing to construct, reconstruct, or enlarge a clean energy product manufacturing facility may choose to receive certification under EFSEC's energy facility siting laws. The authorities that apply to energy facilities apply to clean energy product manufacturing facilities.
Clean energy product manufacturing facilities exclusively or primarily manufacture the following products or components primarily used by such products:
Other Facilities That May Opt In.
In addition to clean energy product manufacturing facilities, storage facilities, all types of renewable natural gas facilities, and renewable and green electroloytic hydrogen energy facilities may also opt into the EFSEC's processes:
Electrical Transmission Facilities.
For an electrical transmission facility that an applicant is choosing to receive certification for, previous requirements are removed so that the only requirements are that this facility must be: (1) of a nominal voltage or at least 115,000 volts; and (2) located in more than one jurisdiction that has promulgated land use plans or zoning ordinances.
The preapplicant fee of $10,000 now only applies to electrical transmission facilities.
Study of Potential Projects.
The EFSEC may conduct a preliminary study of a potential project if an applicant and EFSEC agree that EFSEC do so, rather than only if the applicant requests the study. The EFSEC is no longer required to, but still may, commission an independent consultant to study the potential project. This preliminary study is before any State Environmental Policy Act (SEPA) environmental review process begins, and is not required to include an analysis of environmental impact information. Tribal entities are added to the entities that the EFSEC may cooperate and work with while conducting the preliminary study. If an applicant submits a formal application for the proposed site that was studied, the applicant's payments for the preliminary study may be considered as payment toward the application fee. The preliminary EFSEC study may no longer be used in place of the Environmental Impact Statement required under SEPA.
Except for the siting of electrical transmission facilities, applicants may request a preapplication review of a proposed project, and council staff must provide comments on any additional studies and stakeholder and tribal input that should be included in the application. After this initial review, the EFSEC staff may conduct or contract a further review and consultation if the applicant pays fees that are agreed upon by the director and the applicant.
Engagement with Local Legislative Authorities and Federally Recognized Tribes.
When an application is received, the Chair must notify the city and county legislative authorities where the proposed facility is located as well as the federally recognized tribal governments affected by the proposed facility. The EFSEC must work with local governments where a project is proposed to be sited, and with all federally recognized tribes affected by a proposed facility, to provide for participation and input during siting review and compliance monitoring.
Energy Facility Site Evaluation Council staff must inform affected federally recognized tribes of a project undergoing preapplication review. The Chair and staff must offer to conduct government-to-government consultation to address issues of concern raised by any tribe. The Chair must provide regular updates on the consultation to the EFSEC during the application review process. A summary of the government-to-government consultation process, including issues and proposed resolutions, must be included in the EFSEC reports to the Governor that recommend approving or rejecting an application for certification. This summary must comply with the Public Records Act to exempt records, maps, and other information related to archaeological and certain tribal sites from public reporting.
Public Hearings and Public Comments.
Local jurisdictions are no longer prohibited from changing their plans or ordinances after the land use and zoning ordinance hearing if the proposed site did not conform. Instead, the EFSEC must determine whether the proposal is consistent with local land use and zoning ordinances on the date of the application.
There must be a public comment period prior to the start of the final public hearing that is conducted as an adjudicative proceeding. During the final public hearing, anyone may raise one or more specific issues but only as long as they raised the issue or issues in writing with specificity during the application review process or during the public comment period prior to the start of this hearing.
Additionally, the EFSEC may limit the adjudicative proceeding to whether any local land use plans or zoning ordinances that are inconsistent with the proposed site, as determined in the previous hearing, should be preempted. The EFSEC may only limit the final public hearing in this way if the SEPA review determines that the environmental impact of the proposed facility is not significant or will be mitigated to a nonsignificant level.
The EFSEC must review and consider comments received during the application process in making its recommendation to the Governor.
The director of the EFSEC must provide an opportunity for public comment on a SEPA determination of nonsignificance or mitigated nonsignificance at the end of a process where a project applicant withdraws and revises an application to avoid a determination of significance on the originally submitted application.
Expedited Processing of Applications.
An applicant may apply for expedited processing for any facility covered under the EFSEC's siting laws, not only energy facilities and alternative energy resource facilities. After expedited processing is granted and before providing a recommendation to the Governor, the EFSEC must hold a public meeting to take comments on the proposed application.
Payments to the Energy Facility Site Evaluation Council Account.
The EFSEC Account is created in the state treasury. This is a non-appropriated account that is subject to allotment procedures. All payments, including fees, deposits, and reimbursements, received by the EFSEC from preapplicants, applicants, and certificate holders, must be deposited into this account, instead of to the State General Fund. Only the Chair or the Chair's designee may authorize expenditures from the EFSEC Account. Expenditures may be used to carry out EFSEC siting laws.
Public Comment.
Compared to the original bill, the substitute bill makes a handful of changes, including changes to public engagement. It requires a public comment period to be held prior to the adjudicative hearing. If a person raises one or more specific issues during this comment period, or if a person raises one or more specific issues in writing, the issue or issues may then be heard during the adjudicative hearing. In making its recommendation to the Governor, the Energy Facility Site Evaluation Council (EFSEC) must review and consider comments received during the application process. The substitute bill also specifies that the director of the EFSEC must provide an opportunity for public comment on a State Environmental Policy Act (SEPA) determination of nonsignificance or mitigated nonsignificance at the end of a process where a project applicant withdraws and revises an application to avoid a determination of significance on the originally submitted application.
Federally Recognized Tribes.
For the federally recognized tribes that may appoint voting members to the EFSEC if a proposed facility is located in an area of the a tribe with "ancestral lands," the term "ancestral lands" is replaced with tribes "that possess resources, rights or interests reserved or protected by federal treaty, statute, or executive order" in the area. During the preapplication review phase, EFSEC staff must inform affected federally recognized tribes of a proposed project. The substitute bill also amends other requirements for engaging with federally recognized tribes, including by changing the government-to-government "meetings" to government-to-government "consultation."
Definitions for Projects That Can Opt-In to Energy Facility Site Evaluation Council's Processes.
The substitute bill makes a handful of other changes, including to definitions of projects that may opt-into EFSEC's processes. It removes energy storage facilities from the definition of "alternative energy resource" and adds a separate definition for storage facilities, which can opt-into the EFSEC's processes. The definition of "clean energy product manufacturing facility" broadens the types of transportation products or components that could be manufactured in such a facility.
Expedited Processing.
The substitute bill authorizes applicants to apply for expedited processing for any facility covered under EFSEC's site certification laws, not only energy facilities and alternative energy resource facilities.
(In support) Facilities need to be sited inside the state to meet Washington's clean energy goals and for Washington to come into compliance with and implement its own laws. The current process facilitates none of the goals expressed in the bill. This is an important step to transition to the green energy economy and it will be a powerful tool to create green and family-wage and high-wage jobs in the state. This separates the Energy Facility Site Evaluation Council (EFSEC) from the Utilities and Transportation Commission (UTC) which will make it more efficient and effective. The bill modernizes the EFSEC and makes it more inclusive. The bill expands requirements for engaging with tribes, increases transparency, and formalizes some consultation that the EFSEC already does. Concerns can be addressed at the beginning of the process which will prevent delays. The preapplication process is improved so issues are raised early. There is appreciation for the "raise or waive" provision in section 9. Raising issues earlier supports good projects and weeds out bad projects earlier in the process. There is increased demand in the EFSEC process. This will bring clean energy product manufacturing facilities, which are gaining interest in the EFSEC one-stop process, to the state. There is support for the broad definition of clean energy product manufacturing facilities to incorporate these supply chain products. This will streamline the permitting process for alternative energy projects. When there are local county zoning ordinances that effectively prohibit solar and wind projects, this can be costly for a project under development, and the only way a project can move forward is with the EFSEC. The definition of alternative energy resource is good, as is the inclusion of energy storage facilities and renewable and green electrolytic hydrogen. This can help Washington be more competitive for recent federal funding for hydrogen hubs. There was a very thorough stakeholder process, and the outreach during bill development is appreciated. There are some suggested improvements to the bill, such as improvements to the storage definition, ensuring adequate public process, adding a preadjudication meeting with public comment, and allowing the public comments in the raise or waive provision, and clarifying language that the manufacturing of products doesn't add harm to overburdened communities. The Legislature should consider how to incorporate results from the shrubsteppe conservation strategy and Washington State University's least conflict solar siting process into clearer siting criteria for solar and potentially other energy facilities.
(Opposed) The EFSEC process should not be extended to clean energy manufacturing facilities, which are factories. This is a broad expansion of authority to override local decisions on planning and zoning. Local governments are capable of siting factories without the Governor overriding mandated local planning. This is not needed. The changes to the hearing process will be harmful to many of Washington's counties.
(Other) Thank you for including tribes in the EFSEC process. There are concerns with the term "ancestral lands" because it is not defined in state law, so there should either be a clear definition, or this should be replaced with another term that is defined. Another concern is regarding pipeline projects that are hundreds of miles long. With these projects, every city and county could request to be part of the EFSEC process, which creates an equity situation with tribes because only two can participate. Tribes' cultural sacred places and natural resources shouldn't be put at risk in the name of streamlining and expedited review. Some tribes are unaware of a project's impacts until a permit is filed. As there may be years of work before a permit is filed, there needs to be a requirement that state agencies coordinate with tribes as soon as they are aware of the project before permits are filed with the EFSEC. The bill needs to address the confidentiality of sensitive cultural information. One tribe can't participate for another tribe. Tribes have a voice in local matters and concerns from tribal nations should be addressed. The EFSEC process is supported but there should be a clear, early, and substantive process to solicit and consider public comment. Sections 9 and 10 should have clear authority for soliciting and then considering public comment. The EFSEC should be a venue for clean energy facilities, but the definitions need to be right. Creating the EFSEC as a separate agency would not be helpful. Local governments can site these projects without the help of the EFSEC. Delays in permitting is a longstanding issue for the business community, so the focus on expedited processing is good, but expedited processing should be open to all projects. Washington needs to make it easier and faster and more attractive to site projects in the state without sacrificing environmental protections. While the language to keep projects moving forward in section 9 is beneficial, section 10 does the opposite and there should be more specificity on what makes an application complete. The EFSEC's authority should end after the siting and the EFSEC shouldn't have ongoing regulatory oversight.
The second substitute bill is null and void if specific funding is not provided in the Operating Budget by June 30, 2022.
(In support) Increasing certainty and predictability in the energy facility permit approval process will allow for energy infrastructure to be built in a timely manner. The Legislature has enacted several major climate bills in recent years, and the goals of those bills won't be achieved without additional clean energy infrastructure. This bill modernizes the Energy Facility Site Evaluation Council. Duplication and overlap between agency administrative duties would be reduced. This bill would lead to increases in private business investments and expand the state economy without reducing environmental oversight.
(Opposed) None.