BILL REQ. #:  H-4325.1 

Read first time 01/15/10.   Referred to Committee on Technology, Energy & Communications.

     AN ACT Relating to implementing energy conservation programs; amending RCW 35.92.360, 54.16.280, 36.94.460, 35.92.430, 36.01.250, and 80.28.260; adding a new section to chapter 35.92 RCW; and creating new sections.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that Washington state has the opportunity to realize a prosperous, affordable, and clean energy future through energy efficiency.
     (2) The financing mechanism established in this act will enable local governments to expand and improve existing energy conservation and energy efficiency loan programs to aid the private and nonprofit sectors in undertaking residential, commercial, and industrial energy efficiency upgrades.
     (3) The legislature finds that this financing tool will lead to reductions in household energy bills, provide incentives for the creation of new family-wage jobs in construction, manufacturing, and installation of energy-saving products, encourage investments by the utility sector in a cleaner environment, decrease the need for new power plant construction, and increase energy security.

NEW SECTION.  Sec. 2   A new section is added to chapter 35.92 RCW to read as follows:
     (1) The provision of energy conservation services under this section is declared to be a public use and a public and municipal purpose, which may be conducted through a public utility operated by a municipality. Energy conservation services may be provided through an independent enterprise fund or through an existing electric, water, wastewater, solid waste, heating, or other utility system already operated by the municipality. A municipality that provides energy conservation services under this section is declared to be engaged in the sale or distribution of energy services as those terms are used in Article VIII, section 10 of the state Constitution, and is authorized to operate the loan programs authorized in RCW 35.92.360 and 36.94.460, as applicable. Municipalities providing energy conservation services pursuant to this section shall coordinate with existing conservation programs and services offered by the electric or natural gas energy distribution utility or utilities serving that municipality. Prior to implementing energy conservation services, the legislative authority of the municipality must hold a public hearing and make a legislative determination, based on presentations at the hearing, that the energy conservation services proposed to be provided by the municipality will make available additional or complementary services, target underserved areas or populations, or otherwise add incremental value to the preexisting programs and services provided by the electric or natural gas energy distribution utility.
     (2) For the purpose of providing to its inhabitants and property owners services that lead to the more efficient consumption of energy resources, from whatever source generated, a municipality may construct, purchase, acquire, lease, add to, extend, maintain, and operate a system or program of energy conservation services. For the purpose of providing energy conservation services, the municipality has the full power to operate and regulate such systems and programs; to enter into agreements for the maintenance and operation of any facilities, equipment, or systems, under such terms and conditions as may be determined by the legislative authority of the municipality to be in the municipality's interest; and other powers as may be necessary for the provision and financing of energy conservation services. Nothing in this section authorizes any municipality to generate, transmit, distribute, or sell electricity. Nothing in this section may be construed to restrain or limit the authority of any individual, partnership, corporation, or private utility from establishing and providing energy conservation services.
     (3) The legislative authority of the municipality has full authority to set rates or charges for energy conservation services provided to customers of the system if the rates charged are uniform for the same class of customer or service. In classifying customers served or services furnished, the legislative authority may consider: The difference in cost of services to the various customers; the location of the various customers within the municipality; the difference in cost of maintenance, operation, repair, and replacement of the various parts of the system; the different character of the services furnished various customers; the quantity and quality of the services furnished; and any other matters that present a reasonable difference as a ground for distinction. The legislative authority of the municipality has the full authority to regulate and control the energy conservation services so delivered, together with the right to handle and sell or lease any energy conservation equipment, fixtures or accessories of any kind, necessary and convenient for the provision of energy conservation services.
     (4) A municipality may issue general obligation or revenue bonds, notes, warrants, or other evidences of indebtedness for the purposes of providing all or part of the costs of providing energy conservation services, which shall be issued and sold in accordance with chapters 39.44, 39.46, 39.50, and 39.53 RCW. Additionally, a municipality may form a local improvement district pursuant to chapter 35.43 RCW, and may issue assessment bonds, notes, warrants or other evidences of indebtedness, pursuant to chapter 35.45 RCW, for purposes of financing all or a part of the costs of energy conservation services.
     (5) The authority granted in this section is in addition to any authority granted elsewhere and does not limit the ability to provide conservation services through an existing electric, water, wastewater, or heating utility. The election procedures under RCW 35.92.070, 54.08.070, and chapter 80.52 RCW or other law are not applicable to the establishment of an energy conservation services utility under this section.
     (6) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Energy conservation equipment" means equipment for the conservation or more efficient use of energy, regardless of source, installed at or near the intended place of use. However, the equipment may not include any individual equipment or co-owned and controlled cluster of equipment with a generating capacity that exceeds the net metering system electrical generating capacity threshold established in RCW 80.60.010(10)(a). Energy conservation equipment includes, but is not limited to, weatherizing equipment; energy-conserving lighting systems, heating and cooling systems, and appliances; and equipment or systems that permit owners or substantial users of property or equipment to generate all or a portion of their own electricity through the on-site installation of distributed electricity generation systems that use as fuel solar, wind, geothermal, or hydropower, or other renewable resources available on-site and not from a commercial source.
     (b) "Energy conservation services" means the provision of services to assist owners or substantial users of structures or equipment in the acquisition, installation, and operation of energy conservation equipment, fixtures, or improvements. Energy conservation services include, but are not limited to, energy audit services; weatherization services; energy conservation equipment financing, acquisition, and installation services; and other measures to reduce energy on-site consumption. Energy conservation services may not be considered "a conversion from one energy source to another" that is limited to the change or substitution of one commercial energy supplier for another commercial energy supplier.
     (c) "Municipality" means any city, town, or county.

Sec. 3   RCW 35.92.360 and 2009 c 416 s 1 are each amended to read as follows:
     (1) Any city or town engaged in the generation, sale, or distribution of energy, or engaged in the provision of energy conservation services under section 2 of this act, is hereby authorized, within limits established by the Constitution of the state of Washington, to assist the owners of structures or equipment in financing the acquisition and installation of materials and equipment, for compensation or otherwise, for the conservation or more efficient use of energy in such structures or equipment pursuant to an energy conservation plan adopted by the city or town if the cost per unit of energy saved or produced by the use of such materials and equipment is less than the cost per unit of energy produced by the next least costly new energy resource which ((the city or town)) could ((acquire)) be acquired to meet future demand. Any financing authorized under this chapter shall only be used for conservation purposes in existing structures, and such financing shall not be used for any purpose which results in a conversion from one energy source to another.
     (2) For the purposes of this section, "conservation purposes in existing structures" may include projects to allow a municipal electric or energy conservation utility's customers to generate all or a portion of their own electricity through the on-site installation of a distributed electricity generation system that uses as its fuel solar, wind, geothermal, or hydropower, or other renewable resource that is available on-site and not from a commercial source. Such projects shall not be considered "a conversion from one energy source to another" which is limited to the change or substitution of one commercial energy supplier for another commercial energy supplier.
     (3) Except where otherwise authorized, such assistance shall be limited to:
     (a) Providing an inspection of the structure or equipment, either directly or through one or more inspectors under contract, to determine and inform the owner of the estimated cost of purchasing and installing conservation materials and equipment for which financial assistance will be approved and the estimated life cycle savings in energy costs that are likely to result from the installation of such materials or equipment;
     (b) Providing a list of businesses who sell and install such materials and equipment within or in close proximity to the service area of the city or town, each of which businesses shall have requested to be included and shall have the ability to provide the products in a workmanlike manner and to utilize such materials in accordance with the prevailing national standards;
     (c) Arranging to have approved conservation materials and equipment installed by a private contractor whose bid is acceptable to the owner of the residential structure and verifying such installation; and
     (d) Arranging or providing financing for the purchase and installation of approved conservation materials and equipment. Such materials and equipment shall be purchased from a private business and shall be installed by a private business or the owner.
     (((2))) (4) Pay back shall be in the form of incremental additions to the municipal utility bill, billed either together with use charge or separately. Loans shall not exceed two hundred forty months in length. The city or town may make assistance available in the form of grants made under this section for energy conservation improvements to existing structures owned or occupied by persons qualifying as poor or infirm consistent with the state Constitution.
     (5) The city or town legislative authority shall approve the aggregate amount of such loans and the repayment terms by ordinance and may, by ordinance, delegate to staff the approval of individual loans consistent with loan program guidelines approved in the ordinance. The city or town and the property owner shall enter into a loan agreement setting forth the terms of the loan, which agreement may provide for acceleration in the event a loan installment is delinquent. In order to secure loans, the city or town shall have a statutory lien on the property, not exceeding five percent of the assessed value of the property as of the last assessment preceding the loan funding date, on which energy conservation improvements so financed are installed or constructed. A statutory lien shall be paramount and superior to any other lien or encumbrance theretofore or thereafter created except a lien for general taxes and special assessment district assessments. Any lien for any amount in excess of five percent of the assessed value of the property may be obtained and perfected in accordance with applicable law. The loan shall be a lien upon property from the time the loan agreement is executed. If the city or town legislative authority in granting loans has acted in good faith and without fraud, the loan shall be valid and enforceable as such and the lien thereof upon the property shall be valid.
     (6) The city or town may foreclose a lien in an action in the superior court. All or any of the tracts subject to such a lien may be proceeded against in a single action, and all parties appearing of record as owning or claiming to own or having an interest in or lien upon the tracts involved shall be impleaded in the action as parties defendant. An action to foreclose a lien must be commenced within two years after the date that the loan first becomes subject to acceleration under the loan documents. Liens to secure loans may be foreclosed in the manner provided by RCW 35.67.250 through 35.67.270.
     (7) The city or town may pledge revenues from loan payments to secure and repay general obligation or revenue bonds, notes, or other forms of indebtedness issued by or on behalf of the city or town, which indebtedness shall be issued in accordance with chapters 39.44, 39.46, 39.50 and 39.53 RCW. For the purpose of securing the payment of the principal of and interest on any bonds or notes, the city or town may create a reserve fund. The principal amount of any loan may include a proportionate share of the costs of issuing the bonds, notes, or other indebtedness, and may include up to an additional amount to fund a reserve fund, consistent with RCW 39.44.140. The bonds, warrants, or other evidences of indebtedness shall be deemed to be for capital purposes within the meaning of the uniform system of accounts for municipal corporations.

Sec. 4   RCW 54.16.280 and 2002 c 276 s 3 are each amended to read as follows:
     (1) Any district is hereby authorized, within limits established by the Constitution of the state of Washington, to assist the owners of structures or equipment in financing the acquisition and installation of materials and equipment, for compensation or otherwise, for the conservation or more efficient use of energy in such structures or equipment pursuant to an energy conservation plan adopted by the district if the cost per unit of energy saved or produced by the use of such materials and equipment is less than the cost per unit of energy produced by the next least costly new energy resource which the district could acquire to meet future demand. Any financing authorized under this chapter shall only be used for conservation purposes in existing structures, and such financing shall not be used for any purpose which results in a conversion from one energy source to another.
     (2) For the purposes of this section, "conservation purposes in existing structures" may include projects to allow a district's customers to generate all or a portion of their own electricity through the on-site installation of a distributed electricity generation system that uses as its fuel solar, wind, geothermal, or hydropower, or other renewable resource that is available on-site and not from a commercial source. Such projects shall not be considered "a conversion from one energy source to another" which is limited to the change or substitution of one commercial energy supplier for another commercial energy supplier.
     (3) Except where otherwise authorized, such assistance shall be limited to:
     (((1))) (a) Providing an inspection of the structure or equipment, either directly or through one or more inspectors under contract, to determine and inform the owner of the estimated cost of purchasing and installing conservation materials and equipment for which financial assistance will be approved and the estimated life cycle savings in energy costs that are likely to result from the installation of such materials or equipment;
     (((2))) (b) Providing a list of businesses who sell and install such materials and equipment within or in close proximity to the service area of the district, each of which businesses shall have requested to be included and shall have the ability to provide the products in a workmanlike manner and to utilize such materials in accordance with the prevailing national standards((.
     (3)));
     (c) Arranging to have approved conservation materials and equipment installed by a private contractor whose bid is acceptable to the owner of the residential structure and verifying such installation; and
     (((4))) (d) Arranging or providing financing for the purchase and installation of approved conservation materials and equipment. Such materials and equipment shall be purchased from a private business and shall be installed by a private business or the owner.
     (((5))) (4) Pay back shall be in the form of incremental additions to the municipal utility bill, billed either together with use charge or separately. Loans shall not exceed ((one hundred twenty)) two hundred forty months in length. The district may make assistance available in the form of grants made under this section for energy conservation improvements to existing structures owned or occupied by persons qualifying as poor or infirm consistent with the state Constitution.
     (5) The district legislative authority shall approve the aggregate amount of such loans and the repayment terms by ordinance and may, by resolution, delegate the approval of individual loans consistent with loan program guidelines approved in the resolution. The district and the property owner shall enter into a loan agreement setting forth the terms of the loan, which agreement may provide for acceleration in the event a loan installment is delinquent. In order to secure loans, the district shall have a statutory lien, not exceeding five percent of the assessed value of the property as of the last assessment preceding the loan funding date, on which conservation improvements so financed are installed or constructed. A statutory lien shall be paramount and superior to any other lien or encumbrance theretofore or thereafter created except a lien for general taxes and special assessment district assessments. Any lien for any amount in excess of five percent of the assessed value of the property may be obtained and perfected in accordance with applicable law. The loan shall be a lien upon property from the time the first loan agreement is executed. If the district legislative authority in granting loans has acted in good faith and without fraud, the loan shall be valid and enforceable as such and the lien thereof upon the property shall be valid.
     (6) The district may foreclose a lien in an action in the superior court. All or any of the tracts subject to such a lien may be proceeded against in a single action, and all parties appearing of record as owning or claiming to own or having an interest in or lien upon the tracts involved shall be impleaded in the action as parties defendant. An action to foreclose a lien must be commenced within two years after the date of that the loan first becomes subject to acceleration under the loan documents. Liens to secure loans may be foreclosed in the manner provided by RCW 35.67.250 through 35.67.270.
     (7) The district may pledge revenues from loan payments to secure and repay general obligation or revenue bonds, notes, or other forms of indebtedness issued by or on behalf of the district, which indebtedness shall be issued in accordance with chapters 39.44, 39.46, 39.50, and 39.53 RCW. For the purpose of securing the payment of the principal of and interest on any bonds or notes, the district may create a reserve fund. The principal amount of any loan may include a proportionate share of the costs of issuing the bonds, notes, or other indebtedness, and may include up to an additional ten percent of the loan amount to fund a reserve fund, consistent with RCW 39.44.140. The bonds, warrants, or other evidences of indebtedness shall be deemed to be for capital purposes within the meaning of the uniform system of accounts for municipal corporations.

Sec. 5   RCW 36.94.460 and 1992 c 25 s 3 are each amended to read as follows:
     (1) Any county engaged in the sale or distribution of water, or in the provision of energy conservation services under section 2 of this act, is hereby authorized, within limits established by the Constitution of the state of Washington, to assist the owners of structures that are provided water or energy conservation services by the county in financing the acquisition and installation of fixtures, systems, and equipment, for compensation or otherwise, for the conservation or more efficient use of water or energy in the structures under a water or energy conservation plan adopted by the county if the cost per unit of water saved or conserved by the use of the fixtures, systems, and equipment is less than the cost per unit of water supplied by the next least costly new water source available to the county to meet future demand.
     (2) Except where otherwise authorized, assistance shall be limited to:
     (((1))) (a) Providing an inspection of the structure, either directly or through one or more inspectors under contract, to determine and inform the owner of the estimated cost of purchasing and installing conservation fixtures, systems, and equipment for which financial assistance will be approved and the estimated life cycle savings to the water system and the consumer that are likely to result from the installation of the fixtures, systems, or equipment;
     (((2))) (b) Providing a list of businesses that sell and install the fixtures, systems, and equipment within or in close proximity to the service area of the county, each of which businesses shall have requested to be included and shall have the ability to provide the products in a workmanlike manner and to utilize the fixtures, systems, and equipment in accordance with the prevailing national standards;
     (((3))) (c) Arranging to have approved conservation fixtures, systems, and equipment installed by a private contractor whose bid is acceptable to the owner of the structure and verifying the installation; and
     (((4))) (d) Arranging or providing financing for the purchase ((and)), leasing, or installation of approved conservation fixtures, systems, and equipment. The fixtures, systems, and equipment shall be ((purchased or installed by)) acquired from a private business, the owner, or the utility.
     (3) Pay back shall be in the form of incremental additions to the utility bill, billed either together with (([the])) the use charge or separately. Loans shall not exceed ((one hundred twenty)) two hundred forty months in length. The county may make assistance available in the form of grants made under this section for conservation improvements to existing structures owned or occupied by persons qualifying as poor or infirm consistent with the state Constitution.
     (4) The county legislative authority shall approve the aggregate amount of such loans and the repayment terms by ordinance and may, by ordinance, delegate to staff the approval of individual loans consistent with loan program guidelines approved in the ordinance. The county and the property owner shall enter into a loan agreement setting forth the terms of the loan, which agreement may provide for acceleration in the event a loan installment is delinquent. In order to secure loans, the county shall have a statutory lien on the property, not exceeding five percent of the assessed value of the property as of the last assessment preceding the loan funding date, on which conservation improvements so financed are installed or constructed. A statutory lien shall be paramount and superior to any other lien or encumbrance theretofore or thereafter created except a lien for general taxes and special assessment district assessments. Any lien for any amount in excess of five percent of the assessed value of the property may be obtained and perfected in accordance with applicable law. The loan shall be a lien upon property from the time the loan agreement is executed. If the county legislative authority in granting loans has acted in good faith and without fraud, the loan shall be valid and enforceable as such and the lien thereof upon the property shall be valid.
     (5) The county may foreclose a lien in an action in the superior court. All or any of the tracts subject to such a lien may be proceeded against in a single action, and all parties appearing of record as owning or claiming to own or having an interest in or lien upon the tracts involved shall be impleaded in the action as parties defendant. An action to foreclose a lien must be commenced within two years after the date of that the loan first becomes subject to acceleration under the loan documents. Liens to secure loans may be foreclosed in the manner provided by RCW 35.67.250 through 35.67.270.
     (6) The county may pledge revenues from loan payments to secure and repay general obligation or revenue bonds, notes, or other forms of indebtedness issued by or on behalf of the county, which indebtedness shall be issued in accordance with chapters 39.44, 39.46, 39.50, and 39.53 RCW. For the purpose of securing the payment of the principal of and interest on any bonds or notes, the county may create a reserve fund. The principal amount of any loan may include a proportionate share of the costs of issuing the bonds, notes, or other indebtedness, and may include up to an additional amount to fund a reserve fund, consistent with RCW 39.44.140. The bonds, warrants, or other evidences of indebtedness shall be deemed to be for capital purposes within the meaning of the uniform system of accounts for municipal corporations.

Sec. 6   RCW 35.92.430 and 2007 c 349 s 2 are each amended to read as follows:
     (1) A city or town authorized to acquire and operate utilities for the purpose of furnishing the city or town and its inhabitants and other persons with water, with electricity for lighting and other purposes, or with service from sewerage, storm water, surface water, or solid waste handling facilities, may develop and make publicly available a plan to reduce its greenhouse ((gases)) gas emissions or achieve no-net emissions from all sources of greenhouse gases that the utility owns, leases, uses, contracts for, or otherwise controls.
     (2) A city or town authorized to acquire and operate utilities for the purpose of furnishing the city or town and its inhabitants and other persons with water, with electricity for lighting and other purposes, or with service from sewerage, storm water, surface water, or solid waste handling facilities, may, as part of its utility operation, mitigate the environmental impacts, such as greenhouse ((gases)) gas emissions, of its operation, including any power purchases. The mitigation may include, but is not limited to, those greenhouse gases mitigation mechanisms recognized by independent, qualified organizations with proven experience in emissions mitigation activities. Mitigation mechanisms may include the purchase, trade, and banking of greenhouse gases offsets or credits. If a state greenhouse gases registry is established, a utility that has purchased, traded, or banked greenhouse gases mitigation mechanisms under this section shall receive credit in the registry.
     (3) Without limiting subsections (1) and (2) of this section, any city or town may develop and make publicly available a plan for the city or town to reduce its greenhouse gas emissions, or achieve no-net emissions, from city or town governmental activities, including the operation of any facilities, equipment, fleet of vehicles, or other systems that it owns, operates, leases, uses, contracts for, or otherwise controls. In furtherance of such a plan, the city or town may enter into a mitigation agreement with the provider of electric or natural gas utility services within the city or town.

Sec. 7   RCW 36.01.250 and 2007 c 349 s 6 are each amended to read as follows:
     (1) Any county authorized to acquire and operate utilities or conduct other proprietary or user or ratepayer funded activities may develop and make publicly available a plan for the county to reduce its greenhouse ((gases)) gas emissions or achieve no-net emissions from all sources of greenhouse gases that such county utility or proprietary or user or ratepayer funded activity owns, operates, leases, uses, contracts for, or otherwise controls.
     (2) Any county authorized to acquire and operate utilities or conduct other proprietary or user or ratepayer funded activities may, as part of such utility or activity, reduce or mitigate the environmental impacts, such as greenhouse ((gases)) gas emissions, of such utility and other proprietary or user or ratepayer funded activity. The mitigation may include, but is not limited to, all greenhouse gases mitigation mechanisms recognized by independent, qualified organizations with proven experience in emissions mitigation activities. Mitigation mechanisms may include the purchase, trade, and banking of carbon offsets or credits. Ratepayer funds, fees, or other revenue dedicated to a county utility or other proprietary or user or ratepayer funded activity may be spent to reduce or mitigate the environmental impacts of greenhouse gases emitted as a result of that function. If a state greenhouse gases registry is established, the county that has purchased, traded, or banked greenhouse gases mitigation mechanisms under this section shall receive credit in the registry.
     (3) Without limiting subsections (1) and (2) of this section, any county may develop and make publicly available a plan for the county to reduce its greenhouse gas emissions, or achieve no-net emissions, from county governmental activities, including the operation of any facilities, equipment, fleet of vehicles, or other systems that it owns, operates, leases, uses, contracts for, or otherwise controls. In furtherance of such a plan, the county may enter into a mitigation agreement with the provider of electric or natural gas utility services within the county.

Sec. 8   RCW 80.28.260 and 1996 c 186 s 520 are each amended to read as follows:
     (1)(a) Upon application by an electrical or gas company, the commission shall ((adopt a policy allowing an incentive rate of return on investment (a) for payments made under RCW 19.27A.035 and (b) for programs that improve the efficiency of energy end use if priority is given to senior citizens and low-income citizens in the course of carrying out such programs. The incentive rate of return on investments set forth in this subsection is established by adding an increment of two percent to the rate of return on common equity permitted on the company's other investments.
     (2) The commission shall consider and may adopt a policy allowing an incentive rate of return on investment in additional programs to improve the efficiency of energy end use or other incentive policies to encourage utility investment in such programs.
     (3) The commission shall consider and may adopt other policies to protect a company from a reduction of short-term earnings that may be a direct result of utility programs to increase the efficiency of energy use. These policies may include allowing a periodic rate adjustment for investments in end use efficiency or allowing changes in price structure designed to produce additional new revenue)) approve rate adjustment mechanisms to: (i) Provide full and timely recovery of all prudently incurred cost-effective expenditures for conservation; and (ii) ensure that utilities recover authorized nonfuel revenue requirements that would have been recovered absent conservation savings.
     (b) No rate adjustment mechanism in (a) of this subsection applies to any rate for: (i) Retail wheeling service, high voltage service, or large general service greater than 3aMW; or (ii) commercial or industrial gas service or gas transportation service greater than five hundred thousand therms per year.
     (c) Any rate adjustment in (a) of this subsection may be no more than three percent of a utility's annual revenues in any given year.
     (2) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Conservation" has the same meaning as defined in RCW 19.285.030.
     (b) "Conservation savings" means energy savings reviewed by the commission. Conservation savings include savings from electrical or gas company programs and company-sponsored programs, including rebate-based programs and education-based programs. Conservation savings also include conservation due to changes in federal, state, or local building energy codes and equipment standards.
     (c) "Conservation target" means: (i) For electrical companies, the biennial conservation target set by an electrical company in compliance with RCW 19.285.040; and (ii) for gas companies, the annual natural gas conservation goal set forth in a gas company's most recent applicable tariff filings.
     (d) "Cost-effective" has the same meaning as defined in RCW 80.52.030.

NEW SECTION.  Sec. 9   This act applies prospectively only and does not affect the validity of any loan entered into or any bonds issued with respect to programs or services provided under RCW 35.92.360, 54.16.280, or 36.94.460 prior to the effective date of this section.