A Compendium of 2023 Utilities Legislation

As we continue to review the 2023 legislative session, we see that there were several bills related to public utilities. Some of these bills apply to publicly-owned utilities, while the new laws creating categorical exemptions under the State Environmental Protection Act (SEPA) (chapter 43.21C RCW) will affect the jurisdictions in which these facilities are located.

Fish Hatcheries

ESHB 1758 exempts certain fish hatchery maintenance activities undertaken by the Washington State Department of Fish and Wildlife, a federally recognized Indian tribe, a public utility district, or a municipal utility from Shoreline Management Act permits, variances, and local government review.

Cities and counties should review their permit requirements and revise them as needed to exempt these activities.

Resource Planning

Under SSB 5165, electric utility utilities (other than those that rely on the Bonneville Power Administration for all its power) with more than 25,000 customers must develop and update an Integrated Resource Plan (IRP). An IRP is used to identify a utility company’s long-term energy resource strategy.

This bill increased the requirement for a forecast of regional generation and transmission capacity from 10 years to 20 years. The bill added a requirement that the IRP consider greenhouse gas emission reduction limits. It also adds criteria related to selection of renewable resources, and, it adds provisions to SEPA that require the Washington Energy Facility Site Evaluation Council to prepare non-project environmental impact statements for certain large electrical transmission facilities.

Windmills and Light Pollution

ESHB 1173 requires new and existing wind energy facilities to apply to the Federal Aviation Administration (FAA) to install a light pollution mitigation system to address concerns regarding blinking lights disrupting views of the night sky. The bill categorically exempts light pollution mitigation measures from environmental review under SEPA.

Recreational Immunity

RCW 4.24.210(4)(ii) — also known as the recreational immunity statute — says that an agency operating under a federal hydroelectric license may release water from a dam for certain recreation purposes without that release being considered a “known dangerous artificial latent condition” that would otherwise make the agency liable for harm to users of the recreation area.

SSB 5145 expands the property owners’ immunity by adding boating, swimming, or fishing to the list of activities (i.e., kayaking, canoeing, and rafting) for which water can be released. Agencies that allow these activities on their property or at their facilities may need to update their policies.

Final Thoughts

Because of the new SEPA exclusions, permitting agencies and utility providers should review these new requirements and update their permitting policies if necessary. For more information about recreational immunity and how it applies to your agency, talk with your risk pool/insurance provider.