wa-law.org > bill > 2025-26 > SB 6165 > Original Bill
The legislature finds that: (a) Washington's agricultural lands are a finite and irreplaceable resource that is essential to the state's food security, economic vitality, and rural heritage; (b) the state is experiencing a significant and irreversible loss of productive farm and ranch acreage, which threatens the long-term viability of the agricultural sector; (c) to meet the state's growing energy needs, there is an increasing demand for the construction and expansion of electrical transmission infrastructure; (d) current planning and siting practices for transmission lines often disproportionately target agricultural lands because they are frequently flat, already cleared, and perceived as a lower-cost option for infrastructure build-out; and (e) the use of eminent domain to site transmission lines on private agricultural land is devastating to farm families, disrupts multigenerational farming operations, and accelerates the conversion of working lands to nonagricultural uses.
The legislature further finds that: (a) Public lands are held in trust for the benefit of the people and are intended for public use; and (b) the transmission of electricity for the general welfare constitutes a public use that is compatible with many existing public lands and corridors.
Therefore, it is the intent of the legislature to: (a) Protect Washington's remaining farm and ranch lands from eminent domain for the purpose of transmission infrastructure when feasible; (b) ensure that public lands are utilized to the fullest extent possible for public utility projects before private property rights are infringed upon; and (c) require condemning authorities to demonstrate that all feasible alternatives on public lands and existing rights-of-way have been exhausted before exercising the power of eminent domain on agricultural land.
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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 (14) and (29). No construction or reconstruction of such energy facilities may be undertaken, except as otherwise provided in this chapter, without first obtaining certification in the manner provided in this chapter.
If applicants proposing the following types of facilities choose to receive certification under this chapter, the provisions of this chapter apply to the construction, reconstruction, or enlargement of these new or existing facilities:
Facilities that produce refined biofuel, but which are not capable of producing 25,000 barrels or more per day;
Alternative energy resource facilities;
Electrical transmission facilities: (A) Of a nominal voltage of at least 115,000 volts; and (B) located in more than one jurisdiction that has promulgated land use plans or zoning ordinances;
Clean energy product manufacturing facilities;
Storage facilities; and
Fusion energy facilities. However, such a fusion energy facility receiving site certification must also secure required licenses and registrations, or equivalent authorizations, for radiation control purposes from designated state or federal agencies.
All of the council's powers with regard to energy facilities apply to all of the facilities in (b) of this subsection and these facilities are subject to all provisions of this chapter that apply to an energy facility.
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The provisions of this chapter must apply to:
The construction, reconstruction, or enlargement of new or existing electrical transmission facilities: (A) Of a nominal voltage of at least 500,000 volts alternating current or at least 300,000 volts direct current; (B) located in more than one county; and (C) located in the Washington service area of more than one retail electric utility; and
The construction, reconstruction, or modification of electrical transmission facilities when the facilities are located in a national interest electric transmission corridor as specified in RCW 80.50.045.
For the purposes of this subsection, "modification" 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.
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 (14) and (29).
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 80.50.071 which shall apply to such prior applications and to site certifications prospectively from July 15, 1977.
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.
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An application for certification of an electrical transmission facility must include:
A comprehensive evaluation of all feasible corridors located on public lands or within existing rights-of-way; and
If the proposed route crosses agricultural land, a detailed explanation and evidentiary record demonstrating why the use of public lands or existing rights-of-way is not a feasible alternative.
For the purposes of this subsection, "feasible alternative" means an alternative project capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall project purposes.
Upon receipt of an application for certification under this chapter, the chair of the council shall notify:
The appropriate county legislative authority or authorities where the proposed facility is located;
The appropriate city legislative authority or authorities where the proposed facility is located;
The department of archaeology and historic preservation; and
The appropriate federally recognized tribal governments that may be affected by the proposed facility.
The council must work with local governments where a project is proposed to be sited in order to provide for meaningful participation and input during siting review and compliance monitoring.
The council must consult with all federally recognized tribes that possess resources, rights, or interests reserved or protected by federal treaty, statute, or executive order in the area where an energy facility is proposed to be located to provide early and meaningful participation and input during siting review and compliance monitoring. The chair and designated staff must offer to conduct government-to-government consultation to address issues of concern raised by such a tribe. The goal of the consultation process is to identify tribal resources or rights potentially affected by the proposed energy facility and to seek ways to avoid, minimize, or mitigate any adverse effects on tribal resources or rights. The chair must provide regular updates on the consultation to the council throughout the application review process. The report from the council to the governor required in RCW 80.50.100 must include a summary of the government-to-government consultation process that complies with RCW 42.56.300, including the issues and proposed resolutions.
The department of archaeology and historic preservation shall coordinate with the affected federally recognized tribes and the applicant in order to assess potential effects to tribal cultural resources, archaeological sites, and sacred sites.
A district may construct, condemn and purchase, purchase, acquire, lease, add to, maintain, operate, develop, and regulate all lands, property, property rights, water, water rights, dams, ditches, flumes, aqueducts, pipes and pipe lines, water power, leases, easements, rights-of-way, franchises, plants, plant facilities, and systems for generating electric energy by water power, steam, or other methods; plants, plant facilities, and systems for developing, conserving, and distributing water for domestic use and irrigation; buildings, structures, poles and pole lines, and cables and conduits and any and all other facilities; and may exercise the right of eminent domain to effectuate the foregoing purposes or for the acquisition and damaging of such property and rights, or property of any kind appurtenant thereto, and for the purpose of acquiring the right to make physical connection with plants and plant facilities of all persons and municipalities. The right of eminent domain shall be exercised pursuant to resolution of the commission and conducted in the same manner and by the same procedure as is provided for the exercise of that power by cities and towns of the state in the acquisition of like property and property rights: PROVIDED, That for the purpose of an electrical transmission facility, the power of eminent domain shall not be exercised upon agricultural land, unless the district first demonstrates that the use of public lands or existing rights-of-way is not a feasible alternative. For the purposes of this section, "feasible alternative" means an alternative project capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall project purposes. It shall be no defense to a condemnation proceeding that a portion of the electric current generated or sold by the district will be applied to private purposes, if the principal uses intended are public: PROVIDED, That no public utility owned by a city or town shall be condemned, and none shall be purchased without submission of the question to the voters of the utility district. In a condemnation proceeding, the court shall submit to the jury the values placed upon the property by the taxing authority for taxation purposes, and in respect to property, plants, and facilities of persons using public highways for furnishing public service without franchises, shall consider in determining the value thereof the fact that the property, plants, and facilities are subject to be removed from the highways by reason of being so operated without a franchise.
In any action brought by a condemning authority to acquire property by eminent domain for the purpose of locating or constructing an electrical transmission facility, the condemnor shall bear the burden of proving that the condemnation is necessary for the stated public use.
If the property sought to be condemned is agricultural land, the condemnor's burden of proof for establishing necessity under subsection (1) of this section shall include, and be satisfied by, clear and convincing evidence that:
The condemning authority first made a good faith effort to utilize public lands and existing rights-of-way as an alternative corridor for the electrical transmission facility; and
No feasible alternative route exists on public lands or within existing rights-of-way that would prevent the taking of the productive agricultural land.
If the court finds that the condemning authority has failed to meet the burden of proof required under subsection (2) of this section, the court shall enter a final adjudication that the condemnor cannot acquire the property by condemnation, and the court shall award the condemnee reasonable attorney's fees and reasonable expert witness fees pursuant to RCW 8.25.070.
For the purposes of this section:
"Agricultural land" means any land meeting the definition of "farm and agricultural land" or "farm and agricultural conservation land" under RCW 84.34.020.
"Public lands" means any land owned by the United States, the state of Washington, or any political subdivision thereof, including but not limited to state forest lands, state trust lands, and lands managed by the department of natural resources.
"Feasible alternative" means an alternative project capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall project purposes.
Every city or town owning its own electric power and light plant may exercise the power of eminent domain as provided by law for the condemnation of private property for any of the corporate uses or purposes of the city or town. For the purpose of an electrical transmission facility, the power of eminent domain shall not be exercised upon agricultural land, unless the city or town first demonstrates that the use of public lands or existing rights-of-way is not a feasible alternative. For the purposes of this section, "feasible alternative" means an alternative project capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall project purposes: PROVIDED, That no city or town shall acquire, by purchase or condemnation, any publicly or privately owned electric power and light plant or electric system located in any other city or town except with the approval of a majority of the qualified electors of the city or town in which the property to be acquired is situated; nor shall any city or town acquire by condemnation the electric power and light plant or electric system, or any part thereof, belonging to or owned or operated by any municipal corporation, mutual, nonprofit, or cooperative association or organization, or by a public utility district.
Every corporation, incorporated or that may hereafter be incorporated under the laws of this state, or of any other state or territory of the United States, and doing business in this state, for the purpose of manufacturing or transmitting electric power, shall have the right to appropriate real estate and other property for right-of-way or for any corporate purpose, in the same manner and under the same procedure as now is or may hereafter be provided by law in the case of ordinary railroad corporations authorized by the laws of this state to exercise the right of eminent domain. For the purpose of an electrical transmission facility, the power of eminent domain shall not be exercised upon agricultural land, unless the corporation first demonstrates that the use of public lands or existing rights-of-way is not a feasible alternative. For the purposes of this section, "feasible alternative" means an alternative project capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall project purposes: PROVIDED, That such right of eminent domain shall not be exercised with respect to any public road or street until the location of the transmission line thereon has been authorized in accordance with RCW 80.32.010.