Energy Facility Site Evaluation Council.
The Energy Facility Site Evaluation Council (EFSEC) was established in 1970 to provide a single siting process for major energy facilities located in the state. The EFSEC coordinates all evaluation and licensing steps for siting certain energy facilities, as well as specifies the conditions of construction and operation.
After evaluating an application, the EFSEC submits a recommendation either approving or rejecting an application to the Governor, who makes the final decision on site certification. This recommendation must be reported to the Governor within 12 months of application receipt, or at a later time if agreed to by the applicant and the EFSEC. The recommendation must include a draft certification agreement, which must include various conditions, including conditions to protect state, local, and community interests affected by the construction or operation of the energy facility.
The Governor may approve an application and execute a draft site certification agreement, reject the application, or direct the EFSEC to reconsider certain aspects of the draft site certification agreement. If approved by the Governor, a site certification agreement is issued in lieu of any other individual state or local agency permits.
The laws that require or allow a facility to seek certification through the EFSEC process apply to the construction, reconstruction, and enlargement of energy facilities, biorefineries, and electrical transmission facilities, with many specifications. Energy facilities of any size that exclusively use alternative energy resources, such as wind or solar energy, may opt into the EFSEC review and certification process. Energy facilities that exclusively use alternative energy resources that choose not to opt into the EFSEC review and certification process must instead receive applicable state and local agency development and environmental permits for their projects directly from each agency.
Engagement with Local Legislative Authorities and Federally Recognized Tribes.
When an application is received, the EFSEC Chair (Chair) must notify the:
The DAHP must coordinate with affected federally recognized tribes and with the applicant. The EFSEC must work with local governments where a project is proposed to be sited, and with all federally recognized tribes affected by a proposed facility, to provide for participation and input during siting review and compliance monitoring.
The staff of the EFSEC must inform affected federally recognized tribes of a project undergoing preapplication review. The Chair and EFSEC staff must offer to conduct government-to-government consultation to address issues of concern raised by any tribe. The Chair must provide regular updates on the consultation to the EFSEC during the application review process. A summary of the government-to-government consultation process, including issues and proposed resolutions, must be included in the EFSEC reports to the Governor that recommend approving or rejecting an application for certification. This summary must comply with the Public Records Act to exempt records, maps, and other information related to archaeological and certain tribal sites from public reporting.
Open Public Meetings Act.
The Open Public Meetings Act (OPMA) requires access for the public to attend all meetings of the governing body of a public agency that involves the transaction of official business, including, without limitation, receiving public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. A public agency includes, in part, any state board, commission, committee, department, or other state agency created by or pursuant to statute, other than courts and the Legislature. The OPMA establishes basic procedural and notice requirements for public agency meetings. A meeting under the OPMA occurs when a quorum of a governing body gathers with the collective intent of transacting the governing body's business. In order to be valid, ordinances, resolutions, rules, orders, and directives must be adopted at meetings conducted in compliance with the OPMA.
Any action taken at a meeting held in violation of the OPMA is null and void, and violators may be subject to civil penalties.
Members of a governing body may also meet in executive session during an open public meeting, but only for reasons specified in state law, including, in part, discussions related to the purchase or sale of land, the qualifications of potential appointees, or to consider complaints or charges against a public official or employee.
In general, the OPMA supersedes conflicting provisions in other state laws; however, the OPMA does not apply to:
Engagement with Federally Recognized Tribes.
The Chair and designated staff, upon receipt of an application for site certification, must offer government-to-government consultation with the appropriate federally recognized tribe to seek ways to address issues of concern raised by such a tribe. The goal of the consultation meetings is for the tribe to provide information about potentially affected tribal resources or rights and ways to avoid, minimize, or mitigate any adverse effects on such tribal resources or rights. If the tribe requests to meet with all EFSEC members, consultation must include as many members as possible, with a goal of coordinating the EFSEC's full attendance.
The EFSEC must provide its summary of the consultation process to the tribe prior to submission to the Governor. The EFSEC must allow the tribe to:
Open Public Meetings Act.
As part of the EFSEC's review of applications, government-to-government consultation meetings between a tribe and the EFSEC are exempted from the OPMA as long as there is no deliberation between, or commitments made by, EFSEC members.
Substitute House Bill 2496 makes the following changes to the original bill:
(In support) The state needs to do a better job of consulting with tribes and this bill is part of that effort. Respect for tribal sovereignty is an obligation of all state agencies and this bill would support that responsibility. There is often very sensitive information that the tribes would prefer to reveal to EFSEC and have those concerns brought to the Governor, but they can’t because the meeting is open to the public. Once the public finds out that an area is important to a tribe, it is often trespassed or destroyed. Making these meetings private provides the Tribal Council an opportunity to discuss these traditional areas and ensure that the entire EFSEC has a better understanding of a project's impact and can ask questions of the Tribal Council. It is critical for a government tribal council to share with the government council of EFSEC sensitive information about important cultural religious and treaty reserve resources that can be impacted by proposed projects. This would not slow down the process and would not be a decision-making meeting. The state needs to build more energy infrastructure and facilitating more consultation between EFSEC and tribal partners will help renewable energy projects move faster via a more thorough pre-application process. The bill also would provide the tribe an opportunity to review and comment on the summary of the EFSEC report before it is sent to the Governor.
(Opposed) There needs to be a robust conversation about sacred sites and how they can be avoided within the permitting process for energy facility sites. However, there are concerns that the bill creates some concerns about ex parte communications and due process rights for applicants in the application process. This bill would undermine the EFSEC as a useful place to go for the siting process to build the energy infrastructure we need to meet the state's Clean Energy Transformation Act and Climate Commitment Act targets.
(Other) The bill would allow the full EFSEC to interact with the tribe. However, some language of the bill could inadvertently expand the intent of the EFSEC statutes and should be changed.
(In support) Representative Chris Stearns, prime sponsor; Council Jeremy Takala, Confederated Tribes and Bands of the Yakama Nation; Council Charlene Tillequots, Confederated Tribes and Bands of the Yakama Nation; Stephanie Masterman, Washington Conservation Action; and Jason Hudson, IBEW Local 77.