BILL REQ. #:  S-3294.1 

Read first time 01/09/12.   Referred to Committee on Energy, Natural Resources & Marine Waters.

     AN ACT Relating to small facility siting; amending RCW 80.50.040, 80.50.060, 80.50.071, and 80.50.100; reenacting and amending RCW 80.50.090; adding new sections to chapter 80.50 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that small alternative energy resource facilities provide various benefits to local communities such as: Reducing emissions of air, soil, and water pollutants; creating local jobs; securing a diversified energy supply; and contributing to the development of a clean, sustainable energy industry. The legislature finds that the implementation of state policies that support the development of small alternative energy resource facilities may be hindered by the lack of appropriate local ordinances to permit the siting of these facilities.
     The legislature finds that the energy facility site evaluation council maintains the necessary expertise to evaluate proposed energy projects, balancing the demand for new energy facilities with protection of environmental quality and safety of energy facilities.
     The legislature intends to ensure that small alternative energy resource facilities are sited in a timely manner in local jurisdictions where there are no existing ordinances to permit these facilities, where applicable ordinances have not been updated in over ten years, or where ordinances have been adopted that impede the timely permitting of these facilities.
     Additionally, it is the intent of the legislature to encourage local governments to enter into interlocal agreements with the energy facility site evaluation council for the purpose of authorizing the council to issue permits for small alternative energy resource facilities that are proposed within the geographic jurisdiction of a local government, if the local government determines that it would be more cost-effective for the council to permit these facilities.
     The legislature finds that it may be more cost-effective in some cases for the state to provide a centralized small renewable energy resource facility permitting agency than for each county and municipality to maintain individual permitting staff.

Sec. 2   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;
     (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;
     (7) To conduct hearings on the proposed location of the energy facilities;
     (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)) ensure 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 and local agencies pursuant to interagency agreement: PROVIDED FURTHER, That the council may retain authority for determining compliance relative to monitoring or may delegate authority for ensuring compliance with the terms of the certificate and/or permits to other state or local agencies;
     (10) To integrate its site evaluation activity 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; and
     (14) To issue site permits, using generally established safety standards as provided under section 7(5) of this act, for the construction, reconstruction, or enlargement of small alternative energy resource facilities.

Sec. 3   RCW 80.50.060 and 2007 c 325 s 2 are each amended to read as follows:
     (1) The provisions of this chapter 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 (15))) (12) and (21). 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)(a) The provisions of this chapter apply to the construction, reconstruction, or modification of electrical transmission facilities when:
     (i) The facilities are located in a national interest electric transmission corridor as specified in RCW 80.50.045;
     (ii) An applicant chooses to receive certification under this chapter, and the facilities are: (A) Of a nominal voltage of at least one hundred fifteen thousand volts and are located in a completely new corridor, except for the terminus of the new facility or interconnection of the new facility with the existing grid, and the corridor is not otherwise used for electrical transmission facilities; and (B) located in more than one jurisdiction that has promulgated land use plans or zoning ordinances; or
     (iii) An applicant chooses to receive certification under this chapter, and the facilities are: (A) Of a nominal voltage in excess of one hundred fifteen thousand volts; and (B) located outside an electrical transmission corridor identified in (a)(i) and (ii) of this subsection (3).
     (b) For the purposes of this subsection, "modify" means a significant change to an electrical transmission facility and does not include the following: (i) Minor improvements such as the replacement of existing transmission line facilities or supporting structures with equivalent facilities or structures; (ii) the relocation of existing electrical transmission line facilities; (iii) the conversion of existing overhead lines to underground; or (iv) the placing of new or additional conductors, supporting structures, insulators, or their accessories on or replacement of supporting structures already built.
     (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 (15))) (12) and (21).
     (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.
     (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.
     (7) The provisions of this chapter apply to the installation of a small alternative energy resource facility if a person chooses to apply to the council in order to receive site certification for a small alternative energy resource facility under this chapter.

Sec. 4   RCW 80.50.071 and 2011 c 261 s 1 are each amended to read as follows:
     (1) The council shall receive all applications for energy facility site certification. Except as provided under sections 8 and 9 of this act, each applicant shall pay such reasonable costs as are actually and necessarily incurred by the council in processing an application.
     (a) Each applicant shall, at the time of application submission, deposit fifty thousand dollars, or such greater amount as may be specified by the council after consultation with the applicant. Costs that may be charged against the deposit include, but are not limited to, independent consultants' costs, councilmember's wages, employee benefits, costs of a hearing examiner, costs of a court reporter, staff salaries, wages and employee benefits, goods and services, travel expenses, and miscellaneous direct expenses as arise directly from processing an application.
     (b) The council may commission its own independent consultant study to measure the consequences of the proposed energy facility on the environment or any matter that it deems essential to an adequate appraisal of the site. The council shall provide an estimate of the cost of the study to the applicant and consider applicant comments.
     (c) The council shall submit to each applicant a statement of such expenditures 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.
     (2) 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, operation, and site restoration of the facility.
     (a) Each certificate holder, within thirty days of execution of the site certification agreement, shall have on deposit fifty thousand dollars, or such greater amount as may be specified by the council after consultation with the certificate holder. Costs that may be charged against the deposit include, but are not limited to, those specified in subsection (1)(a) of this section as arise from inspection and determination of compliance by the certificate holder with the terms of the certification.
     (b) 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 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.
     (3) 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.
     (4) 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.
     (5)(a) Upon receipt of an application for an energy facility site certification proposing an energy plant or alternative energy resource that is connected to electrical transmission facilities of a nominal voltage of at least one hundred fifteen thousand volts, the council shall notify in writing the United States department of defense. The notification shall include, but not be limited to, the following:
     (i) A description of the proposed energy plant or alternative energy resource;
     (ii) The location of the site;
     (iii) The placement of the energy plant or alternative energy resource on the site;
     (iv) The date and time by which comments must be received by the council; and
     (v) Contact information of the council and the applicant.
     (b) The purpose of the written notification is to provide an opportunity for the United States department of defense to comment upon the application, and to identify potential issues relating to the placement and operations of the energy plant or alternative energy resource, before a site certification application is approved. The time period set forth by the council for receipt of such comments shall not extend the time period for the council's processing of the application.
     (c) In order to assist local governments required to notify the United States department of defense under RCW 35.63.270, 35A.63.290, and 36.01.320, the council shall post on its web site the appropriate information for contacting the United States department of defense.

Sec. 5   RCW 80.50.090 and 2006 c 205 s 3 and 2006 c 196 s 6 are each reenacted and amended to read as follows:
     (1) The council shall conduct an informational public hearing in the county of the proposed site as soon as practicable but not later than sixty days after receipt of an application for site certification. However, 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 city, 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 city, 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.
     (4) Additional public hearings shall be held as deemed appropriate by the council in the exercise of its functions under this chapter.
     (5) This section does not apply to sections 7 and 8 of this act.

Sec. 6   RCW 80.50.100 and 2011 c 180 s 109 are each amended to read as follows:
     (1)(a) The council shall report to the governor its recommendations as to the approval or rejection of an application for certification 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.
     (b) In the case of an application filed prior to December 31, 2025, for certification of an energy facility proposed for construction, modification, or expansion for the purpose of providing generating facilities that meet the requirements of RCW 80.80.040 and are located in a county with a coal-fired electric ((generating [generation])) generation facility subject to RCW 80.80.040(3)(c), the council shall expedite the processing of the application pursuant to RCW 80.50.075 and shall report its recommendations to the governor within one hundred eighty days of receipt by the council of such an application, or a later time as is mutually agreed by the council and the applicant.
     (2) 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.
     (3)(a) Within sixty days of receipt of the council's report the governor shall take one of the following actions:
     (i) Approve the application and execute the draft certification agreement; or
     (ii) Reject the application; or
     (iii) Direct the council to reconsider certain aspects of the draft certification agreement.
     (b) The council shall reconsider such aspects of the draft certification agreement 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 to the governor incorporating any amendments deemed necessary upon reconsideration. Within sixty days of receipt of such draft certification agreement, 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.
     (4) 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.
     (5) This section does not apply to sections 7 and 8 of this act.

NEW SECTION.  Sec. 7   A new section is added to chapter 80.50 RCW to read as follows:
     (1) A person may apply to the council for a site permit for a small alternative energy resource facility if one or more of the following conditions is met:
     (a) The facility is located in a county or municipality that has not adopted ordinances for the permitting of small alternative energy resource facilities;
     (b) The facility is located in a county or municipality that has not updated its ordinances for the permitting of small alternative energy resource facilities in over ten years; or
     (c) The county or municipal permitting process for a proposed small alternative energy resource facility exceeds six months from time of application and the proposed facility meets generally established safety standards.
     (2) The application for small alternative energy resource facility processing must be submitted to the council in the form and manner as may be determined by motion and vote of the council.
     (3)(a) Any person, before submitting an application for a small alternative energy resource facility site permit, may submit a letter to the council to inquire as to whether a proposed small alternative energy resource facility would require mitigation and receive a written estimate from the council of the cost of processing the application.
     (b) Within thirty days of receiving such a letter of inquiry, the council must provide a response to what mitigation, at a minimum, might be required and a written estimate of the cost of processing the site permit application.
     (4) The council shall develop a site permitting process for small alternative energy resource facilities.
     (5)(a) The council must survey for and determine generally established safety standards for each type of small alternative energy resource facility and adopt site permitting standards based on the council's review of these standards.
     (b)(i) In surveying for and determining generally established safety standards, the council must use existing local municipal and county small alternative energy resource facility ordinances in Washington adopted in the last ten years giving preference to ordinances established in neighboring jurisdictions to the jurisdiction where the small alternative energy resource facility is proposed.
     (ii) If there are no existing local municipal and county ordinances in Washington relating to small alternative energy resource facilities adopted in the last ten years, then the council must use existing state, local, or municipal ordinances in the western electric coordinating council geographic area adopted in the last ten years.
     (iii) If there are no existing state, local, or municipal ordinances relating to small alternative energy resource facilities in the western electric coordinating council geographic area adopted in the last ten years, then the council must use existing state, local, or municipal ordinances adopted in the United States in the last ten years.
     (6) The council may charge a fee that covers the costs incurred by the council in reviewing a small alternative energy resource facility site permit and of compliance inspection costs delegated to local governments where compliance is not preempted by other state agencies by statute. The council must develop and charge a fee that provides the lowest possible cost to the applicant.
     (7) The council may delegate authority to council staff, as deemed necessary by the council, to issue small alternative energy resource facility site permits.
     (8) A small alternative energy resource facility site permit issued by the council under this section may not be revoked or superseded by any local ordinance adopted by the local jurisdiction after the permit is issued, even if the small alternative energy resource facility permitted under this section is inconsistent with the newly adopted local ordinance.
     (9) For the purposes of this chapter, "small alternative energy resource facility" means any facility that meets the definition of a "net metering system" under RCW 80.60.010 and does not use biomass as a fuel.

NEW SECTION.  Sec. 8   A new section is added to chapter 80.50 RCW to read as follows:
     The council and any local government in the state may enter into, and are encouraged to enter into, an interlocal agreement as provided under chapter 39.34 RCW for the purpose of authorizing the council to issue permits for small alternative energy resource facilities within the geographic jurisdiction of the local government. The council may serve as the permitting authority for a local government if the local government determines that it would be more cost-effective for the council to permit small alternative energy resource facilities within their jurisdiction. Such an agreement supersedes the provisions provided under section 7 of this act.

NEW SECTION.  Sec. 9   A new section is added to chapter 80.50 RCW to read as follows:
     A permitting decision regarding a small alternative energy resource facility under section 7 of this act is subject to judicial review under chapter 34.05 RCW. A petition for a review of a permitting decision by the council must be filed within thirty days after the date of the permitting decision by the council.