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WA Supreme Court upholds state siting council’s approval of wind energy facility  

Credit:  WA Supreme Court Upholds State Siting Council’s Approval of Wind Energy Facility | Patricia Salkin | September 26, 2013 | livabilitylaw.com ~~

Whistling Ridge Energy Project (“WREP”) applied to the Energy Facility Site Evaluation Council (“EFSEC”) to build and operate a wind powered energy facility in a rural area of Washington State. The project site is located in a scenic area that is “recognized by many for its pristine natural environment and beauty.” The site is also home to many species of wildlife, including some endangered species.

The stated policy of the Energy Facilities Site Locations Act (“EFSLA”) is “to recognize the pressing need for increased energy facilities and promote the creation of such facilities in a way that 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” (internal quotations omitted). After submission of an application, the statute requires several hearings to be conducted. If EFSEC sees fit, it may recommend approval to the governor, who in turn decides whether to ultimately approve the application.

In the present case, EFSEC conducted two public hearings. Those in favor of the project were pleased with the new environmentally-friendly source of energy, while those in opposition to the project expressed concerns about its environmental and aesthetic impacts. A land use consistency hearing was also conducted, which revealed that the project is located in an unmapped zone with no applicable comprehensive zoning laws. EFSEC rejected arguments that the project was inconsistent with the county’s comprehensive code. EFSEC further found that the project was allowable because the zoning code allows any use in unmapped zones as long as it is not a nuisance, and wind power has never been found by a court to be a nuisance.

After all the appropriate hearings and evaluations, EFSEC recommended to the governor that the project be approved, but only after certain concerns were addressed. WREP’s application was to build 50 wind turbines, but in response to public concern, only 35 were ultimately permitted. Additionally, EFSEC consulted with the Washington Department of Fish and Wildlife (“WDFW”) and concluded that appropriate measures should be taken in order to mitigate the effects on the wildlife. The governor ultimately approved the project as long as certain conditions were met. Friends of the Columbia Gorge, Inc. and Save Our Scenic Area (collectively, “Petitioners”) appealed the governor’s decision to the trial court, who certified the issue directly to the Supreme Court of Washington.

On appeal, Petitioners raised eight total issues: (1) whether WREP’s application satisfied the requirements of the Washington Administrative Code (“WAC”) regarding application procedures; (2) whether EFSEC complied with the WAC’s fish and wildlife requirements; (3) whether EFSEC formally adopted a specific mitigation parcel for the project; (4) whether EFSEC violated the requirement of the Revised Code of Washington (“RCW”) to minimize adverse environmental effects; (5) whether EFSEC erred in finding that the project was consistent with local land use laws; (6) whether EFSEC erred in delaying review under the Forest Practices Act of 1974; (7) whether the site certification agreement (“SCA”) was internally consistent with its treatment of the Forest Practices Act; and (8) whether Petitioners were entitled to costs and fees.

The court first addressed the challenges under the WAC. Petitioners contended that WREP’s application was insufficient because it failed to include certain required information, namely, (1) an assessment of risk of avian collisions “during day and night”; (2) consideration of the WDFW’s Wind Power Guidelines; and (3) a discussion of mitigation measures. The WAC requires an applicant to provide information regarding the project and its environmental effects “in such detail as determined by the council to enable the council to go forward with its application review.” The court explained that this last element of the provision shows that EFSEC has broad discretion in determining the sufficiency of the information.

The WAC requires an application to include an “assessment of risk of collision of avian species with any project structures, during day and night, migration periods, and inclement weather.” The court noted that the application did in fact contain such an assessment, but Petitioners challenged the adequacy of the assessment and the methodologies used. The court rejected this argument and reasoned that EFSEC had discretion to determine what methodologies were sufficient. The court thus held that WREP satisfied the WAC’s application requirements. With regard to the WDFW Wind Power Guidelines, Petitioners again challenged the sufficiency of the application. WDFW guidelines require that an application give them “due consideration.” The court emphasized the discretionary nature of this requirement, noting that it is “not a mandatory compliance rule.” Here, the WDFW specifically found WREP’s evaluation to be consistent with its guidelines. Since that ultimate determination was within the broad discretion of EFSEC, the court found no need to disturb this finding. Finally, the court addressed Petitioners’ challenge of the sufficiency of the application’s discussion of mitigation measures. The WAC requires applications to include a “detailed discussion of mitigation measures,” and Petitioners argue that WREP only engaged in a “minimal discussion.” The court explained that to expect a discussion of every detail would be “unrealistic.” Since WREP indeed included a discussion of mitigation measures, and EFSEC found the application to be sufficient, the court held that Petitioners failed to prove the application was insufficient in this respect.

The court then addressed the second issue on appeal. The WAC requires that projects result in “no net loss” of wildlife habitat. Petitioners claim that the application was in violation of the Administrative Procedure Act (“APA”) because it did not include a “no net loss” evaluation. The court rejected this argument, explaining that the “no net loss” rule is not an application requirement but rather a “part of the ongoing operation standards for energy facilities.” Since Petitioners only challenged the omission of this rule from the application, and they did not challenge WREP’s ongoing compliance with the rule, the court upheld EFSEC’s determination. Petitioners further challenged WREP’s fish and wildlife surveys. The WAC requires that fish and wildlife surveys be conducted “during all seasons of the year to determine breeding, summer, winter, migratory usage, and habitat condition of the site.” Petitioners argued that WREP failed to satisfy the “migratory usage” requirement because they did not conduct surveys of a species known as the olive-sided flycatcher. The court explained that the fish and wildlife survey requirements are not necessary components of an application, but rather a “part of the ongoing oversight of the project.” As such, Petitioners were unable to challenge the application sufficiency on this basis. The court found that even if this were a challenge-able basis, there was still no evidence of a violation. WREP did conduct surveys during eleven months out of the year and during all seasons. The court was unpersuaded by Petitioners’ argument that WREP’s surveys were insufficient because of a two-month period when no surveys were conducted. Since the two-month gap did not affect WREP’s compliance with the “during all seasons” requirement, the court held that reversal was not warranted here.

With respect to the mitigation parcel issue, Petitioners argued that EFSEC made contradictory statements regarding its decision about the mitigation parcel. The WAC often requires mitigation parcels as part of the “no net loss” rule. The court on its own raised the issue of ripeness and concluded that since the actual mitigation measures had not yet been determined, the issue was not ripe for appeal.

The court next addressed the fourth issue on appeal. Petitioners claimed that the proposed project was in violation of the RCW’s requirement to use “available and reasonable methods … [to] produce minimal adverse effects on the environment.” Possible adverse effects include aesthetic, heritage, and recreational resources. Petitioners asserted that two specific types of measures were overlooked. The court noted that EFSEC did attempt to minimize adverse effects. For example, they reduced the allowable number of wind turbines from 50 to 35 in direct response to public concern about the aesthetic impact. The court found that overall, EFSEC used sufficient methods in order to reduce the project’s negative impacts. Petitioners’ expectation that EFSEC use each and every mitigation measure was an “extreme reading” of the statute. The court thus rejected Petitioners’ argument and declined to reverse the agency’s recommendation on this basis.

The next issue on appeal was Petitioners’ challenge of EFSEC’s finding that the project was consistent with the county code. The court here ultimately made the same determination that EFSEC originally did. The county code provides that any use is permitted in unmapped areas, as long as the use is not a nuisance. Here, the proposed project was located in an area outside of a zoning map and was thus considered unmapped. Furthermore, wind turbines and wind farms have never been declared a nuisance by any court or other authority. Since the project here did not constitute a nuisance, the use was thus allowable and the project was in compliance with the county code. Petitioners also asserted that the project was not in compliance with a moratorium passed by the county, arguing that the moratorium constituted a “land use regulation.” The EFSLA requires the project to be consistent with relevant zoning and land use laws. EFSEC and WREP argued, and the court agreed, that the moratorium does not constitute either a zoning or land use law, thus rendering WREP’s compliance with the moratorium irrelevant. The EFSLA’s definition of “zoning ordinance” is “an ordinance of a unit of local government regulating the use of land.” The moratorium at issue prohibited “the acceptance and processing of checklists related to forest practice conversions.” The court concluded that the moratorium did not regulate the use of land, but only the processing of checklists. As such, the court held that the moratorium was not a land use regulation and WREP’s compliance was not necessary.

Petitioners additionally argued that the matter should be remanded because of EFSEC’s postponement of an issue, resulting in its failure to “resolve all contested issues.” The challenged issue was whether it was improper for EFSEC to defer the issue of compliance with the Forest Practices Act. The court stated that “no authority is cited for the idea that the Forest Practices Act must be dealt with in an EFSEC adjudication.” As such, the court held that EFSEC sufficiently resolved the issue.

The court briefly rejected Petitioners’ assertion that the SCA was inconsistent in its treatment of Forest Practices Act compliance. The court explained that the two quoted sections discuss different provisions, so it made sense that they would be treated differently. The court stated that it was “unclear why this inconsistency would cause sufficient prejudice to warrant reversal,” and thus affirmed EFSEC’s holding on this issue.

Friends of Columbia Gorge, Inc. v. EFSEC, 2013 WL 4608563 (WA 8/29/2013)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/pdf/880891.pdf

Source:  WA Supreme Court Upholds State Siting Council’s Approval of Wind Energy Facility | Patricia Salkin | September 26, 2013 | livabilitylaw.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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