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Certification Process

Before certain energy facilities can be sited, constructed, or operated in Washington, an application must be submitted to the Energy Facility Site Evaluation Council (Council or EFSEC). The Council was created to provide a one-stop licensing agency for certain non-hydro energy projects.

EFSEC is a Washington State board comprised of a Chair appointed by the Governor and representatives from 5 state agencies. The Council is augmented by representatives from the particular counties, cities, or port districts where potential projects may be located, as well as additional state agencies that can opt-into the review of a new proposal.

The Council's statutory authority is contained in Chapter 80.50 of the Revised Code of Washington (RCW). EFSEC has promulgated rules for conducting business and the processing of applications in the Washington Administrative Code (WAC), Title 463.

The Siting Process

EFSEC project siting review, or certification, is the state licensing process for the siting, construction, and operation of an energy project. The pre-application process, which allows for an open dialogue between prospective developers and EFSEC, may be done prior to starting the formal application process. The Council is responsible for evaluating applications to ensure that all environmental and socioeconomic impacts are considered before making a recommendation to the Governor to approve or deny the project (flow chart). If the Council determines that constructing and operating the facility will produce minimal adverse effects on the environment, ecology of the land and wildlife, and ecology of the state waters and aquatic life, and meets its construction and operation standards then it recommends that a Site Certification Agreement (SCA) be approved and signed by the Governor. The SCA lists the conditions the applicant must meet during construction and while operating the facility. A SCA does not grant the right of eminent domain to the SCA holder.

Regulatory Responsibilities

The EFSEC statute directs the Council to regulate the construction and operation of the facility. EFSEC is the state's regulatory agency that determines compliance with state laws and the terms set in the SCA. (EFSEC contracts with other state agencies for on-site inspections.) The Council has the regulatory authority to enforce compliance with state laws and the conditions in the SCA through fines and other actions. EFSEC continues this oversight responsibility through restoration of the site after the project is terminated.

Energy Facilities -The energy facilities subject to review by the Energy Facility Site Evaluation Council are:

Thermal Electrical Generation:

  • Any stationary thermal (non-hydro) power plant with electrical generating capacity of 350 Megawatts or more including associated facilities such as transmission lines in excess of 115 kilovolts
  • Floating thermal power plants of 100 MW (100,000 kilowatts) or more.

Alternative Energy Electrical Generation: (Facilities of any size for which an applicant chooses to receive certification under EFSEC)

  • Wind
  • Solar
  • Geothermal
  • Landfill gas
  • Wave or tidal action
  • Biomass


  • Crude or refined petroleum or liquid petroleum product pipelines larger than 6 inches in diameter and greater than 15 miles in length
  • Natural gas, synthetic fuel, gas, or liquefied petroleum gas pipelines larger than 14 inches in diameter and greater than 15 miles in length (intrastate only).

Electrical Transmission Lines:

  • Electrical transmission facilities in a national interest electric transmission corridor.
  • Electrical transmission facilities for which an applicant chooses to receive certification under EFSEC, and the facility is:
    - Greater than 115 kilovolts and located outside an electrical transmission corridor; or
    - At least 115 kilovolts and located in a new corridor or located in more than one jurisdiction that has promulgated land use plans and zoning ordinances.

Petroleum Refineries:

  • New refineries capable of processing more than 25,000 barrels per day of petroleum or biofuel into refined product, except where such biofuel production is undertaken at existing industrial facilities.
  • Refineries which increases its processing of petroleum into refined product by more than 25,000 barrels per day.
  • Crude or refined petroleum or liquefied petroleum facilities that can receive more than an average of 50,000 barrels per day that will be or have been transported over marine waters. (This doesn't apply to storage facilities unless they are part of a new energy plant or transmission facility.)

Petroleum Storage:

  • Any underground natural gas storage reservoir capable of delivering more than 100,000,000 cu.ft. per day.
  • Crude or refined petroleum or liquefied petroleum facilities that can receive more than an average of 50,000 barrels per day that will be or have been transported over marine waters. (This doesn't apply to storage facilities unless they are part of a new energy plant or transmission facility.)
  • Liquid natural gas facilities with capacity to receive an equivalent of more than 100,000,000 cu.ft. per day that has been transported over marine waters.


The Pre-Application phase enables an honest exchange of information and data early in the project planning process. Typically, this conversation is with EFSEC and a developer, but may include others. This ongoing conversation can help developers avoid unnecessary delays and expenditures. By identifying information gaps early in the planning process many potential issues can be addressed with minimal financial impact. However, if those issues are not identified until later, they may result in:

  1. Lengthy delays to conduct additional seasonally dependent studies.
  2. Extensive project re-design.
  3. High costs for remediations of problems that could have been avoidable.
  4. The need to switch or relocate the site.
  5. Project abandonment.

The goal of Pre-Application is to assist in avoiding negative outcomes by ensuring the right people with the right information are around the table early on.  These Pre-Application discussions allow for collaboration to identify what issues need attention if a project has a better chance of success.

The initial conversation helps in identifying stakeholders and how to include their prospectives. On-going dialogues will help to pinpoint gaps - what additional data or research is needed, and what studies can be done to produce that data.

When the iterative pre-application process is done correctly it will lead to a more complete formal application that will be ready for regulatory review.

A $10,000 deposit may be required.

Certification (Siting Review)

The EFSEC certification process was designed to give applicants an opportunity to present their proposals, allow interested parties to express their concerns to the Council, and have the Council address issues related to the application.

There are seven major steps in the certification process:

  1. Application Submittal
  2. Application Review
  3. Initial Public Meeting
  4. Land Use Consistency Hearing
  5. Environmental Impact Statement
  6. Adjudicative Proceedings and Permits Review
  7. Recommendation to the Governor

Each step has specific requirements the applicant and the Council must follow to ensure a comprehensive and balanced review of the project. Many of the steps take place at the same time.

1. Application Submittal

Submitting an application is the first step in the EFSEC certification process. An application to EFSEC must follow the guidelines for applications found in Chapter 463-60 Washington Administrative Code (WAC). The guidelines require the applicant to fully address more than 60 subjects dealing with environmental and socioeconomic impacts, including measures the applicant will take for mitigating or offsetting impacts the project may have.

The application must be accompanied by a $50,000 fee and the applicant will be billed for all actual costs throughout EFSEC's review.

An applicant may request EFSEC conduct its review using an Expedited Process (Chapter 463-43 WAC). In an Expedited Process, the Council is required to determine eligibility within 4 months of application submittal and make a recommendation to the Governor within 6 weeks of granting eligibility. However, to be eligible for expedited processing the Council must find that the proposed project has no significant environmental impact (or impacts will be mitigated to a non-significant level) and is consistent and in compliance with existing local land use ordinances.

2. Application Review

When an application is submitted, EFSEC begins its application review. EFSEC retains an independent consultant to ascertain if the information submitted in the application conforms to Chapter 463-60 WAC. The independent consultant may also assist EFSEC in preparing an Environmental Impact Statement (EIS). The $50,000 application fee is applied toward the cost of the independent consultant under contract to EFSEC for this review.

The application must specify how the project will meet the Council's Construction and Operational Standards (Chapter 463-62 WAC) and information and detail of the design, methods of construction, and operation of the proposed facility that will ensure a clean and safe environment. The application will also describe how the applicant will abide by the rules and regulations that the Council will use to monitor and check for compliance with state laws. The application should contain the relevant information and data as specified in Chapter 463-60 WAC and that would be necessary for the development of an EIS. The information in the application provides the technical background information for the adjudicative hearing.

EFSEC's independent consultant will advise the Council if additional information is needed to prepare the EIS and/or commence the adjudicative hearings. When the Council determines there is sufficient information regarding the proposed project it will proceed with the adjudicative hearings.

The Council asks the counties, cities, and port districts where the project is to be located to appoint representatives to sit on the Council when it considers issues within their jurisdiction. State law (RCW 80.50.030) only gives voting authority to city and county representatives; not to port district representatives. These members serve until the proposed site is accepted or rejected.

3. Initial Public Meeting

No later than 60 days of receipt of the application, the Council must hold an initial public meeting on the proposed project. The purpose of the initial public meeting is to explain the proposed project and the Council process. After the applicant has described the proposed project, the Council explains the process for review, determination, and recommendation to the Governor. The Council also allows the public to present written or oral testimony relating to the proposed project. This meeting may also act as scoping meetings for the EIS. The initial public hearing is held in the vicinity of the proposed project after notifying public officials, publishing public notices, and putting out news releases.

4. Land Use Consistency Hearing

Subsequent to the informational public meeting, the Council must hold a land use hearing to ascertain if the proposed project is consistent with city, county or regional land use plans or ordinances. Anyone wishing to address the Council regarding consistency with land use plans may testify at this hearing.

If the Council determines the project is not consistent with local land use plans it will schedule an adjudicative proceeding (usually held concurrent with the adjudicative proceeding described below) to determine if it will recommend the Governor preempt the local land use regulations. Details for this process are contained in Chapter 463-28 WAC.

5. Environmental Impact Statement

The project may require a simple Environmental Checklist or most likely a more detailed Environmental Impact Statement. It may fall under both state and federal jurisdiction.

State Environmental Policy Act (SEPA)

For major energy facilities the Council becomes the lead SEPA agency. If the proposal is an action and not exempt from SEPA, the Council asks the applicant to complete an Environmental Checklist. (A checklist is not needed if the Council and applicant agree that an EIS is required.) The applicant may also submit an Environmental Checklist with its application.

The State Environmental Policy Act (SEPA) is a Washington State law known as the Revised Code of Washington (RCW) 43.21C.  RCW 43.21C was enacted in 1971 which requires state and local agencies to identify and analyze the adverse environmental impacts of a proposal before making a decision on that proposal (RCW 43.21C.030). Decision makers can and are expected to use other information as part of their decision-making process. The SEPA information is intended to ensure decision makers have the environmental information to evaluate significant adverse environmental impacts. In the implementation rules, under Washington Administrative Code (WAC) 197-11, one agency (identified as the lead agency) is responsible for defining the environmental analysis that will be used by all agencies when deciding on the proposal. Generally, when a facility applies for certification through EFSEC, EFSEC takes the role of lead agency. The law also gives EFSEC and other agencies supplemental authority (also called substantive authority) to require mitigation for the identified impacts. This authority is granted even if the agency does not have direct authority to regulate those impacts defined in their own rules and codes.

Data Requests

As part of analyzing the proposal for impacts, EFSEC sends data requests to the applicant requesting additional information or clarification regarding their proposal and/or the site. Initially, EFSEC makes data requests to the applicant to collect enough information to conduct a SEPA review. It is common for EFSEC to request additional information because the application cannot anticipate all the questions that EFSEC and consulting agencies believe are relevant to a specific project’s unique aspects. Data requests can occur anytime in the SEPA process, but typically are less frequent and with fewer questions as the process moves forward and the project becomes more defined. After the applicant responds to a data request, EFSEC and their contractors review and use the response during their project analysis. Sometimes there are follow-up requests based on the information received.

SEPA Scoping

When a decision is made to prepare an Environmental Impact Statement (EIS) for SEPA review, the EIS process is initiated with a Determination of Significance (DS). EFSEC announces the DS in a Scoping Notice. This first step announces that an EIS will be prepared and identifies the SEPA lead agency as well as providing a public comment period. The Scoping process solicits input from the public, tribal governments, and other agencies regarding:

  • alternatives,
  • mitigation measures,
  • likely significant adverse environmental impacts, and
  • licenses/approvals that may apply.

A Scoping Notice, also known as DS/Scoping, begins the process of identifying alternatives and environmental elements that warrant detailed analysis in the EIS (also known as setting the scope of the EIS). The public, tribal governments, and other agencies are given 21-30 days (WAC 197-11-408 and -410) to provide feedback to EFSEC once the Scoping notice is issued.

SEPA Scoping comments (applies to public, agency, and tribal)

EFSEC is required to consider all comments received during Scoping in determining the scope of the EIS but is not required to respond to those comments in writing. Comments which support or oppose the project are considered outside the scope (not substantive) and will not be used when preparing the draft EIS (DEIS). This is because the EIS is focused on adverse environmental impacts. The environmental subjects that the EIS focuses on are listed in WAC 197-11-444. EFSEC also includes some discussion on Socioeconomic impacts in the EIS.

Scoping Report or Scoping Memo

A Scoping Report or Memo can be prepared and informs the public about the comments received during Scoping and how that information will set the Scope of the draft EIS. It may or may not identify the alternatives that will be analyzed in detail in the EIS. EFSEC is not required to prepare a Scoping Report or Memo.

Draft Environmental Impact Statement

Once the Scope of the EIS is determined, a draft EIS is prepared. The DEIS provides substantial information about the proposal and adverse environmental impacts, as well as identify any significant adverse environmental impacts. The DEIS is shared with the public, tribal governments, and other agencies for review and comment.

National Environmental Policy Act (NEPA)

EFSEC works cooperatively with federal agencies to develop EISs, conduct hearings, and publish EISs for projects that fall under both the National Environmental policy Act and the State Environmental Policy Act. EFSEC's policy is to continue to develop and conduct cooperative NEPA/SEPA reviews when possible.

The EIS Process

The Council retains an independent consultant to help in the preparation and review of the EIS. The applicant bears the expense of the EIS preparation, but the consultant working for the Council helps ensures that all pertinent environmental issues are addressed thoroughly. The Council can require the applicant to provide additional information that may require the applicant to conduct specific investigations.

The amount of time required to develop an EIS depends on:

  • If done in cooperation with the federal government, the time it takes to hold informal state and federal planning sessions and develop a Memorandum of Understanding between the state and federal agencies to designate the roles of each agency in developing an environmental document
  • Whether the information contained in the application is complete
  • The time it takes to develop and finalize draft and final documents.

The public is notified when the draft EIS is ready. The EIS is subject to public review. The Council holds public hearings on the draft EIS. If it is a joint federal/state EIS, joint hearings are held. At the same time the EIS is developed and related public hearings on the draft EIS are held, adjudicative proceedings may take place. However, the adjudicative proceedings must be finalized before the Council issues the final EIS.

6. Adjudicative Proceedings and Permits Review

Adjudicative proceedings are held at the same time air and water discharge permits are developed.

Adjudicative Proceedings

EFSEC's certification process calls for the Council to hold hearings on the proposed project to allow the applicant and opponents to present information to support their cases. Council rule requires the hearings to be conducted as Adjudicative Proceedings (Chapter 463-30 WAC). Land use preemption issues may be heard during these proceedings.

The Council's adjudicatory proceeding is a formal hearing process similar to a courtroom proceeding, where the Council hears from the official "parties" to the proceedings. By law all state agencies and local governments with members on the Council are considered parties to any Adjudicatory Proceeding before the Council (however, they may not elect to participate as a party). An agency wishing to be an active participant in the proceedings may be represented by the agency's Assistant Attorney general during the proceedings. The state Attorney General's Office appoints a Counsel for the Environment to be a party in the proceedings representing the public and its interest in protecting the quality of the environment.

Other interested persons; tribes; groups; or local, state, or federal agencies may petition the Council to become interveners in the proceedings. The Council considers the intervener petitions and determines whether to grant intervener participation based on the project's impact on the concerns of the interveners. If denied party status, petitioners may ask the Council for administrative review if they disagree with the Council's decision.

Prehearing Conferences

A series of prehearing conferences are held prior to the adjudicative proceedings to organize and schedule the hearings by subject matter. The primary purpose of the prehearing conferences is to streamline the hearings as much as possible by defining, focusing, and narrowing the issues. The Council or hearings officer uses these conferences to determine what contested issues will be heard during the adjudicative hearings, the order of issues to be heard, and a schedule for the hearings. In that each individual issue can be addressed in a logical and methodical manner.


The Council may use an Administrative Law Judge, or conduct the hearings itself. The Council attends the hearings, but may rely on its Administrative Law Judge for procedural rulings and other legal matters during the hearings.

The adjudicatory proceedings are conducted in a manner in accordance with the Washington State Administrative Procedures Act (Chapter 34.05 RCW). Expert testimony is given and cross-examination is allowed. It is recommended that parties and interveners have legal counsel represent them during the hearings.

The testimony and exhibits introduced during these proceedings are the basis for the record the Council refers to when determining whether to recommend project approval or disapproval to the Governor. Information from these proceedings is also used to determine the SCA's conditions for construction and operation of the project. The applicant must meet these conditions if the Governor approves the project.

Air and Water Discharge Permits

In tandem with the adjudicative proceedings, the Council initiates its process for developing air and water discharge permits if needed.

Additional hearings are scheduled for developing the conditions to be set in the air and water discharge permits. Discharges to the air may require the applicant to receive a Prevention of Significant Deterioration (PSD) permit. The Environmental Protection Agency (EPA) has delegated responsibility for issuing the PSD to the Council. The PSD permit details the components and levels of contaminants that may be discharged to the air by the project. The applicant must provide evidence that the project will meet all local, state, and federal Clean Air Act standards before the Council will issue the permit.

For general and operating air permit regulations see Chapter 463-78 WAC.

The EPA has also delegated the Council authority to issue the National Pollutant Discharge Elimination System (NPDES) permit for discharging wastes in the state's waters. The applicant is required to provide evidence that any discharge to state waters will meet all the standards in the state and federal Clean Water Acts. See Chapter 463-76 WAC.

Council Considerations

When the adjudicative hearings have concluded, the Council takes time to consider the information collected during the proceedings. After its deliberations the Council writes an administrative order containing the Council's findings of fact, conclusions of law, and, if it finds the project should proceed, a recommendation to the Governor to approve the project. The Council has the option of issuing a preliminary or draft administrative order allowing the parties to take exceptions to the findings. The Council then reviews any exceptions and issues a final administrative order.

7. Recommendation to the Governor

If the Council determines the project should be recommended to the Governor, it develops an administrative order on recommendation (including any recommended preemption of local land use regulations) and a draft Site Certification Agreement to be signed by the Governor. The SCA has all of the environmental, social, economic, and engineering conditions the applicant must meet for construction and operation throughout the life of the project. The draft SCA includes as attachments all required PSD or NPDES permits developed by the Council.

If the Council determines the project should not be recommended to the Governor for approval, the final order explains the Council's decision.

The Governor has 60 days to consider the Council's recommendation and can take one of the following actions:

  1. Approve the Council recommendation and execute the draft SCA
  2. Reject the application
  3. Direct the Council to reconsider certain aspects of the project and draft SCA


EFSEC - Energy Facility Site Evaluation Council
EIS - Environmental Impact Statement
EPA - Environmental Protection Agency
NEPA - National Environmental Policy Act
NPDES - National Pollution Discharge Elimination System
PSD - Prevention of Significant Deterioration
RCW - Revised Code of Washington
SCA - Site Certification Agreement
SEPA - State Environmental Policy Act
WAC - Washington Administrative Code