BILL REQ. #:  H-3723.1 

Prefiled 1/7/2004. Read first time 01/12/2004.   Referred to Committee on Technology, Telecommunications & Energy.

     AN ACT Relating to the determination of mitigation recommendations for licensing of nonfederal hydropower projects under the energy facility site evaluation council; and amending RCW 80.50.010, 80.50.020, 80.50.030, 80.50.040, 80.50.060, 80.50.071, 80.50.080, 80.50.085, 80.50.090, 80.50.100, and 80.50.110.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 80.50.010 and 2001 c 214 s 1 are each amended to read as follows:
     The legislature finds that the present and predicted growth in energy demands in the state of Washington requires the development of a procedure for the selection and utilization of sites for energy facilities and the identification of a state position with respect to each proposed site. The legislature recognizes that the selection of sites will have a significant impact upon the welfare of the population, the location and growth of industry and the use of the natural resources of the state.
     The legislature further finds that as federally licensed hydroelectric projects seek to be relicensed, the demand for affordable and reliable electricity requires that a process be developed for identification of a state position on mitigation recommendations submitted under the federal licensing process.
     It is the policy of the state of Washington to recognize the pressing need for increased energy facilities, and to ensure through available and reasonable methods, that the location and operation of such facilities will produce minimal adverse effects on the environment, ecology of the land and its wildlife, and the ecology of state waters and their aquatic life.
     It is the intent to seek courses of action that will balance the increasing demands for energy facility location and operation in conjunction with the broad interests of the public. Such action will be based on these premises:
     (1) To assure Washington state citizens that, where applicable, operational safeguards are at least as stringent as the criteria established by the federal government and are technically sufficient for their welfare and protection.
     (2) To preserve and protect the quality of the environment; to enhance the public's opportunity to enjoy the esthetic and recreational benefits of the air, water and land resources; to promote air cleanliness; and to pursue beneficial changes in the environment.
     (3) To provide abundant energy at reasonable cost.
     (4) To avoid costs of complete site restoration and demolition of improvements and infrastructure at unfinished nuclear energy sites, and to use unfinished nuclear energy facilities for public uses, including economic development, under the regulatory and management control of local governments and port districts.
     (5) To avoid costly duplication in the siting process and in the determination of mitigation recommendations by state and local governments for the licensing of nonfederal hydroelectric projects under the federal energy regulatory commission and to ensure that decisions are made timely and without unnecessary delay.

Sec. 2   RCW 80.50.020 and 2001 c 214 s 3 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Applicant" means any person who makes application for a site certification pursuant to the provisions of this chapter or who makes application for a federal hydropower license through the federal energy regulatory commission using the alternative licensing process.
     (2) "Application" means any request for approval of a particular site or sites filed in accordance with the procedures established pursuant to this chapter or any request to determine mitigation recommendations for major existing nonfederal dams under the federal energy regulatory commission using the alternative licensing process, unless the context otherwise requires.
     (3) "Person" means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, political subdivision, municipal corporation, government agency, public utility district, or any other entity, public or private, however organized.
     (4) "Site" means any proposed or approved location of an energy facility.
     (5) "Certification" means a binding agreement between an applicant and the state which shall embody compliance to the siting guidelines, in effect as of the date of certification, which have been adopted pursuant to RCW 80.50.040 as now or hereafter amended as conditions to be met prior to or concurrent with the construction or operation of any energy facility.
     (6) "Associated facilities" means storage, transmission, handling, or other related and supporting facilities connecting an energy plant with the existing energy supply, processing, or distribution system, including, but not limited to, communications, controls, mobilizing or maintenance equipment, instrumentation, and other types of ancillary transmission equipment, off-line storage or venting required for efficient operation or safety of the transmission system and overhead, and surface or subsurface lines of physical access for the inspection, maintenance, and safe operations of the transmission facility and new transmission lines constructed to operate at nominal voltages in excess of 200,000 volts to connect a thermal power plant to the northwest power grid: PROVIDED, That common carrier railroads or motor vehicles shall not be included.
     (7) "Transmission facility" means any of the following together with their associated facilities:
     (a) Crude or refined petroleum or liquid petroleum product transmission pipeline of the following dimensions: A pipeline larger than six inches minimum inside diameter between valves for the transmission of these products with a total length of at least fifteen miles;
     (b) Natural gas, synthetic fuel gas, or liquified petroleum gas transmission pipeline of the following dimensions: A pipeline larger than fourteen inches minimum inside diameter between valves, for the transmission of these products, with a total length of at least fifteen miles for the purpose of delivering gas to a distribution facility, except an interstate natural gas pipeline regulated by the United States federal power commission.
     (8) "Independent consultants" means those persons who have no financial interest in the applicant's proposals and who are retained by the council to evaluate the applicant's proposals, supporting studies, or to conduct additional studies.
     (9) "Thermal power plant" means, for the purpose of certification, any electrical generating facility using any fuel, including nuclear materials, for distribution of electricity by electric utilities.
     (10) "Energy facility" means an energy plant ((or)), transmission facilities, or a major existing nonfederal dam: PROVIDED, That the following are excluded from the provisions of this chapter:
     (a) Facilities for the extraction, conversion, transmission or storage of water, other than water specifically consumed or discharged by energy production or conversion for energy purposes; and
     (b) Facilities operated by and for the armed services for military purposes or by other federal authority for the national defense.
     (11) "Council" means the energy facility site evaluation council created by RCW 80.50.030.
     (12) "Counsel for the environment" means an assistant attorney general or a special assistant attorney general who shall represent the public in accordance with RCW 80.50.080.
     (13) "Construction" means on-site improvements, excluding exploratory work, which cost in excess of two hundred fifty thousand dollars.
     (14) "Energy plant" means the following facilities together with their associated facilities:
     (a) Any stationary thermal power plant with generating capacity of three hundred fifty thousand kilowatts or more, measured using maximum continuous electric generating capacity, less minimum auxiliary load, at average ambient temperature and pressure, and floating thermal power plants of one hundred thousand kilowatts or more, including associated facilities. For the purposes of this subsection, "floating thermal power plants" means a thermal power plant that is suspended on the surface of water by means of a barge, vessel, or other floating platform;
     (b) Facilities which will have the capacity to receive liquified natural gas in the equivalent of more than one hundred million standard cubic feet of natural gas per day, which has been transported over marine waters;
     (c) Facilities which will have the capacity to receive more than an average of fifty thousand barrels per day of crude or refined petroleum or liquified petroleum gas which has been or will be transported over marine waters, except that the provisions of this chapter shall not apply to storage facilities unless occasioned by such new facility construction;
     (d) Any underground reservoir for receipt and storage of natural gas as defined in RCW 80.40.010 capable of delivering an average of more than one hundred million standard cubic feet of natural gas per day; and
     (e) Facilities capable of processing more than twenty-five thousand barrels per day of petroleum into refined products.
     (15) "Land use plan" means a comprehensive plan or land use element thereof adopted by a unit of local government pursuant to chapters 35.63, 35A.63, or 36.70 RCW.
     (16) "Zoning ordinance" means an ordinance of a unit of local government regulating the use of land and adopted pursuant to chapters 35.63, 35A.63, or 36.70 RCW or Article XI of the state Constitution.
     (17) "Alternative energy resource" means: (a) Wind; (b) solar energy; (c) geothermal energy; (d) landfill gas; (e) wave or tidal action; or (f) biomass energy based on solid organic fuels from wood, forest, or field residues, or dedicated energy crops that do not include wood pieces that have been treated with chemical preservatives such as creosote, pentachlorophenol, or copper-chrome-arsenic.
     (18) "Major existing nonfederal dam" means a licensed or unlicensed hydroelectric project that has a total installed generating capacity of more than one and one-half megawatts.

Sec. 3   RCW 80.50.030 and 2001 c 214 s 4 are each amended to read as follows:
     (1) There is created and established the energy facility site evaluation council.
     (2)(a) The chair of the council shall be appointed by the governor with the advice and consent of the senate, shall have a vote on matters before the council, shall serve for a term coextensive with the term of the governor, and is removable for cause. The chair may designate a member of the council to serve as acting chair in the event of the chair's absence. The salary of the chair shall be determined under RCW 43.03.040. The chair is a "state employee" for the purposes of chapter 42.52 RCW. As applicable, when attending meetings of the council, members may receive reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060, and are eligible for compensation under RCW 43.03.250.
     (b) The chair or a designee shall execute all official documents, contracts, and other materials on behalf of the council. The Washington state department of community, trade, and economic development shall provide all administrative and staff support for the council. The director of the department of community, trade, and economic development has supervisory authority over the staff of the council and shall employ such personnel as are necessary to implement this chapter. Not more than three such employees may be exempt from chapter 41.06 RCW.
     (3)(a) The council shall consist of the directors, administrators, or their designees, of the following departments, agencies, commissions, and committees or their statutory successors:
     (i) Department of ecology;
     (ii) Department of fish and wildlife;
     (iii) Department of community, trade, and economic development;
     (iv) Utilities and transportation commission; and
     (v) Department of natural resources.
     (b) The directors, administrators, or their designees, of the following departments, agencies, and commissions, or their statutory successors, may participate as councilmembers at their own discretion provided they elect to participate no later than sixty days after an application is filed:
     (i) Department of agriculture;
     (ii) Department of health;
     (iii) Military department; and
     (iv) Department of transportation.
     (c) In addition to those departments, agencies, and commissions designated in (a) of this subsection, the parks and recreation commission shall participate as a council member for purposes of determining mitigation recommendations for the licensing of a major existing nonfederal dam under the federal energy regulatory commission.
     (d) Council membership is discretionary for agencies that choose to participate under (b) of this subsection only for applications that are filed with the council on or after May 8, 2001. For applications filed before May 8, 2001, council membership is mandatory for those agencies listed in (b) of this subsection.
     (4) The appropriate county legislative authority of every county wherein an application for a proposed site is filed, or where mitigation recommendations may be submitted as conditions for granting a federal hydropower license, shall appoint a member or designee as a voting member to the council. The member or designee so appointed shall sit with the council only at such times as the council considers the proposed site, or proposed mitigation recommendations for a federal hydropower license, for the county which he or she represents, and such member or designee shall serve until there has been a final acceptance or rejection of the proposed site or proposed mitigation recommendations for a federal hydropower license.
     (5) The city legislative authority of every city within whose corporate limits an energy plant is proposed to be located, or where a major existing nonfederal dam is located, shall appoint a member or designee as a voting member to the council. The member or designee so appointed shall sit with the council only at such times as the council considers the proposed site, or proposed mitigation recommendations for a federal hydropower license, for the city which he or she represents, and such member or designee shall serve until there has been a final acceptance or rejection of the proposed site or proposed mitigation recommendations for a federal hydropower license.
     (6) For any port district wherein an application for a proposed port facility is filed subject to this chapter, the port district shall appoint a member or designee as a nonvoting member to the council. The member or designee so appointed shall sit with the council only at such times as the council considers the proposed site for the port district which he or she represents, and such member or designee shall serve until there has been a final acceptance or rejection of the proposed site. The provisions of this subsection shall not apply if the port district is the applicant, either singly or in partnership or association with any other person.

Sec. 4   RCW 80.50.040 and 2001 c 214 s 6 are each amended to read as follows:
     The council shall have the following powers:
     (1) To adopt, promulgate, amend, or rescind suitable rules and regulations, pursuant to chapter 34.05 RCW, to carry out the provisions of this chapter, and the policies and practices of the council in connection therewith;
     (2) To develop and apply environmental and ecological guidelines in relation to the type, design, location, construction, and operational conditions of certification of energy facilities subject to this chapter;
     (3) To establish rules of practice for the conduct of public hearings pursuant to the provisions of the Administrative Procedure Act, as found in chapter 34.05 RCW;
     (4) To prescribe the form, content, and necessary supporting documentation for site certification or for mitigation recommendations made for a major existing nonfederal dam under a federal alternative licensing process;
     (5) To receive applications for energy facility locations and to investigate the sufficiency thereof;
     (6) To make and contract, when applicable, for independent studies of sites proposed by the applicant or of mitigation recommendations made for a major existing nonfederal dam under a federal alternative licensing process;
     (7) To conduct hearings on the proposed location of the energy facilities or on proposed mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process;
     (8) To prepare written reports to the governor which shall include: (a) A statement indicating whether the application is in compliance with the council's guidelines, (b) criteria specific to the site and transmission line routing, (c) a council recommendation as to the disposition of the application, and (d) a draft certification agreement when the council recommends approval of the application;
     (9) To prescribe the means for monitoring of the effects arising from the construction and the operation of energy facilities to assure continued compliance with terms of certification and/or permits issued by the council pursuant to chapter 90.48 RCW or subsection (12) of this section: PROVIDED, That any on-site inspection required by the council shall be performed by other state agencies pursuant to interagency agreement: PROVIDED FURTHER, That the council may retain authority for determining compliance relative to monitoring;
     (10) To integrate its site evaluation activity, or its consideration of mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process, with activities of federal agencies having jurisdiction in such matters to avoid unnecessary duplication;
     (11) To present state concerns and interests to other states, regional organizations, and the federal government on the location, construction, and operation of any energy facility which may affect the environment, health, or safety of the citizens of the state of Washington;
     (12) To issue permits in compliance with applicable provisions of the federally approved state implementation plan adopted in accordance with the Federal Clean Air Act, as now existing or hereafter amended, for the new construction, reconstruction, or enlargement or operation of energy facilities: PROVIDED, That such permits shall become effective only if the governor approves an application for certification and executes a certification agreement pursuant to this chapter: AND PROVIDED FURTHER, That all such permits be conditioned upon compliance with all provisions of the federally approved state implementation plan which apply to energy facilities covered within the provisions of this chapter; and
     (13) To serve as an interagency coordinating body for energy-related issues.

Sec. 5   RCW 80.50.060 and 2001 c 214 s 2 are each amended to read as follows:
     (1) The provisions of this chapter shall apply to the construction of energy facilities which includes the new construction of energy facilities and the reconstruction or enlargement of existing energy facilities where the net increase in physical capacity or dimensions resulting from such reconstruction or enlargement meets or exceeds those capacities or dimensions set forth in RCW 80.50.020 (7) and (14). No construction of such energy facilities may be undertaken, except as otherwise provided in this chapter, after July 15, 1977, without first obtaining certification in the manner provided in this chapter.
     (2) The provisions of this chapter apply to the construction, reconstruction, or enlargement of a new or existing energy facility that exclusively uses alternative energy resources and chooses to receive certification under this chapter, regardless of the generating capacity of the project.
     (3) The provisions of this chapter apply to the determination of mitigation recommendations by state agencies and local governments as a condition to the granting of a federal hydropower license where the applicant for the hydropower license is proceeding under the alternative licensing process and chooses to have the mitigation recommendations determined under this chapter.
     (4) The provisions of this chapter shall not apply to normal maintenance and repairs which do not increase the capacity or dimensions beyond those set forth in RCW 80.50.020 (7) and (14).
     (((4))) (5) Applications for certification of energy facilities made prior to July 15, 1977 shall continue to be governed by the applicable provisions of law in effect on the day immediately preceding July 15, 1977 with the exceptions of RCW 80.50.190 and 80.50.071 which shall apply to such prior applications and to site certifications prospectively from July 15, 1977.
     (((5))) (6) Applications for certification shall be upon forms prescribed by the council and shall be supported by such information and technical studies as the council may require.

Sec. 6   RCW 80.50.071 and 1977 ex.s. c 371 s 16 are each amended to read as follows:
     (1) The council shall receive all applications for energy facility site certification and applications to determine mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process. The following fees or charges for application processing or certification monitoring shall be paid by the applicant or certificate holder:
     (a) A fee of twenty-five thousand dollars for each proposed site, to be applied toward the cost of the independent consultant study authorized in this subsection, shall accompany the application and shall be a condition precedent to any further consideration or action on the application by the council. The council shall commission its own independent consultant study to measure the consequences of the proposed energy facility on the environment for each site application. The council shall direct the consultant to study any matter which it deems essential to an adequate appraisal of the site. The full cost of the study shall be paid by the applicant: PROVIDED, That said costs exceeding a total of the twenty-five thousand dollars paid pursuant to subsection (1)(a) of this section shall be payable subject to the applicant giving prior approval to such excess amount.
     (b) Each applicant shall, in addition to the costs of the independent consultant provided by subsection (1)(a) of this section, pay such reasonable costs as are actually and necessarily incurred by the council in processing the application. Such costs shall include, but are not limited to, costs of a hearing examiner, a court reporter, additional staff salaries, wages and employee benefits, goods and services, travel expenses within the state and miscellaneous expenses, as arise directly from processing such application.
     Each applicant shall, at the time of application submission, deposit twenty thousand dollars, or such lesser amount as may be specified by council rule, to cover costs provided for by subsection (1)(b) of this section. Reasonable and necessary costs of the council directly attributable to application processing shall be charged against such deposit.
     The council shall submit to each applicant a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures. The applicant shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level: PROVIDED, That such applicant may, at the request of the council, increase the amount of funds on deposit to cover anticipated expenses during peak periods of application processing. Any funds remaining unexpended at the conclusion of application processing shall be refunded to the applicant, or at the applicant's option, credited against required deposits of certificate holders.
     (c) Each certificate holder shall pay such reasonable costs as are actually and necessarily incurred by the council for inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility.
     Each certificate holder, within thirty days of execution of the site certification agreement, shall deposit twenty thousand dollars, or such other amount as may be specified by council rule, to cover costs provided for by subsection (1)(c) of this section. Reasonable and necessary costs of the council directly attributable to inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility shall be charged against such deposit.
     The council shall submit to each certificate holder a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures. The certificate holder shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level: PROVIDED, That if the actual, reasonable, and necessary expenditures for inspection and determination of compliance in the preceding calendar quarter have exceeded the amount of funds on deposit, such excess costs shall be paid by the certificate holder.
     (2) If an applicant or certificate holder fails to provide the initial deposit, or if subsequently required payments are not received within thirty days following receipt of the statement from the council, the council may (a) in the case of the applicant, suspend processing of the application until payment is received; or (b) in the case of a certificate holder, suspend the certification.
     (3) All payments required of the applicant or certificate holder under this section are to be made to the state treasurer who shall make payments as instructed by the council from the funds submitted. All such funds shall be subject to state auditing procedures. Any unexpended portions thereof shall be returned to the applicant or certificate holder.

Sec. 7   RCW 80.50.080 and 1977 ex.s. c 371 s 6 are each amended to read as follows:
     After the council has received a site application or an application to determine mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process, the attorney general shall appoint an assistant attorney general as a counsel for the environment. The counsel for the environment shall represent the public and its interest in protecting the quality of the environment. Costs incurred by the counsel for the environment in the performance of these duties shall be charged to the office of the attorney general, and shall not be a charge against the appropriation to the energy facility site evaluation council. He shall be accorded all the rights, privileges and responsibilities of an attorney representing a party in a formal action. This section shall not be construed to prevent any person from being heard or represented by counsel in accordance with the other provisions of this chapter.

Sec. 8   RCW 80.50.085 and 2001 c 214 s 5 are each amended to read as follows:
     (1) After the council has received a site application or an application to determine mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process, council staff shall assist applicants in identifying issues presented by the application.
     (2) Council staff shall review all information submitted and recommend resolutions to issues in dispute that would allow site approval or determination of mitigation recommendations.
     (3) Council staff may make recommendations to the council on conditions that would allow site approval or determination of mitigation recommendations.

Sec. 9   RCW 80.50.090 and 2001 c 214 s 7 are each amended to read as follows:
     (1) The council shall conduct an informational public hearing in the county of the proposed site or in the county of the location of a major existing nonfederal dam as soon as practicable but not later than sixty days after receipt of an application for site certification or determination of mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process: PROVIDED, That the place of such public hearing shall be as close as practical to the proposed site.
     (2) Subsequent to the informational public hearing, the council shall conduct a public hearing to determine whether or not the proposed site is consistent and in compliance with county or regional land use plans or zoning ordinances. If it is determined that the proposed site does conform with existing land use plans or zoning ordinances in effect as of the date of the application, the county or regional planning authority shall not thereafter change such land use plans or zoning ordinances so as to affect the proposed site.
     (3) Prior to the issuance of a council recommendation to the governor under RCW 80.50.100 a public hearing, conducted as an adjudicative proceeding under chapter 34.05 RCW, the Administrative Procedure Act, shall be held. At such public hearing any person shall be entitled to be heard in support of or in opposition to the application for certification or an application to determine mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process.
     (4) Additional public hearings shall be held as deemed appropriate by the council in the exercise of its functions under this chapter.

Sec. 10   RCW 80.50.100 and 1989 c 175 s 174 are each amended to read as follows:
     (1) The council shall report to the governor its recommendations as to the approval or rejection of an application for certification, or an application to determine mitigation recommendations for a major existing nonfederal dam under a federal alternative licensing process, within twelve months of receipt by the council of such an application, or such later time as is mutually agreed by the council and the applicant. If the council recommends approval of an application for certification, it shall also submit a draft certification agreement with the report. The council shall include conditions in the draft certification agreement to implement the provisions of this chapter, including, but not limited to, conditions to protect state or local governmental or community interests affected by the construction or operation of the energy facility, and conditions designed to recognize the purpose of laws or ordinances, or rules or regulations promulgated thereunder, that are preempted or superseded pursuant to RCW 80.50.110 as now or hereafter amended.
     (2) Within sixty days of receipt of the council's report the governor shall take one of the following actions:
     (a) Approve the application and execute the draft certification agreement or approve the proposed mitigation recommendations; ((or))
     (b) Reject the application; or
     (c) Direct the council to reconsider certain aspects of the draft certification agreement or the proposed mitigation recommendations.
     The council shall reconsider such aspects of the draft certification agreement or the proposed mitigation recommendations by reviewing the existing record of the application or, as necessary, by reopening the adjudicative proceeding for the purposes of receiving additional evidence. Such reconsideration shall be conducted expeditiously. The council shall resubmit the draft certification or the proposed mitigation recommendations to the governor incorporating any amendments deemed necessary upon reconsideration. Within sixty days of receipt of such draft certification agreement or proposed mitigation recommendations, the governor shall either approve the application and execute the certification agreement or reject the application. The certification agreement shall be binding upon execution by the governor and the applicant.
     (3) The rejection of an application for certification by the governor shall be final as to that application but shall not preclude submission of a subsequent application for the same site on the basis of changed conditions or new information.

Sec. 11   RCW 80.50.110 and 1975-'76 2nd ex.s. c 108 s 37 are each amended to read as follows:
     (1) If any provision of this chapter is in conflict with any other provision, limitation, or restriction which is now in effect under any other law of this state, or any rule or regulation promulgated thereunder, this chapter shall govern and control and such other law or rule or regulation promulgated thereunder shall be deemed superseded for the purposes of this chapter.
     (2) The state hereby preempts the regulation and certification of the location, construction, and operational conditions of certification of the energy facilities included under RCW 80.50.060 as now or hereafter amended.
     (3) For applications where the applicant chooses to determine mitigation recommendations under this chapter, only those state and local government mitigation recommendations determined under this chapter may be submitted as part of the federal hydropower licensing process.