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Developer Wants State to Pre-empt Local Approvals for Proposed Central Washington Wind Farm Mark Ohrenschall Con.Web, February 27, 2004

State-Bound?

The developer of a controversial proposed central Washington wind project has asked the state to pre-empt local land-use and zoning processes.

A Zilkha Renewable Energy subsidiary made this request Feb. 7 to the Washington Energy Facility Site Evaluation Council, to which the company in early 2003 applied for site certification for its 181.5-megawatt-capacity Kittitas Valley Wind Power Project northwest of Ellensburg .

EFSEC in May required Zilkha to seek compliance with Kittitas County's wind farm regulations. Zilkha had pursued local approvals, but now wants EFSEC to assume authority.

Zilkha project manager Chris Taylor criticized the county's process as duplicative of EFSEC, inconsistent and slow. He said the siting council would consider the same issues as would the county, including the wind farm's prospective impacts on views, property values and birds. "All the facts are on the table," he said. "At the end of the day someone's going to have to make a decision."

Kittitas County finds the Zilkha request "very disappointing," said planner Clay White. The county had awaited EFSEC's draft environmental impact statement, which came out in December, to provide "solid, defensible information" for its own process. He called the Kittitas Valley review "a huge land-use decision," affecting an area larger than the city of Ellensburg.

One wind farm opponent took strong exception to the pre-emption request. "Zilkha trying to circumvent the county and go to the state is adding fuel to the fire. Now I'm really furious," said Roger Weaver, a Kittitas County real estate professional who believes Zilkha's wind farm proposal would reduce property values.

EFSEC will likely decide a course of action on considering Zilkha's pre-emption request by early March, according to siting manager Irina Makarow. It's a novelty for the agency, she added: "This is really the first time the council's going to be going through this whole process."

Kittitas Valley Wind

Texas-based Zilkha unveiled plans for the Kittitas Valley wind project in April 2002, and in January 2003 applied for EFSEC site certification, rather than undertake the county's permitting process.

In May, the state siting agency found the wind farm proposal "is not consistent and in compliance with Kittitas County land use plans or zoning ordinances." It directed Zilkha to "make the necessary application for change in, or permission under, the Kittitas County land use plans or zoning ordinances, and make all reasonable efforts to resolve the noncompliance."

Zilkha applied to Kittitas County in June, but has withdrawn the application, said White.

The county, as of December 2002, requires of wind farms a rezoning of the proposed site, a comprehensive plan amendment and a development agreement and permit. This replaced former county regulations allowing wind farms as conditional uses in certain agricultural, forest and range zoning areas.

"The County's lengthy and duplicative land use process is actually a project specific siting/permit process, which includes an invalid environmental impact statement review procedure," said Zilkha's pre-emption request. "The process being demanded by Kittitas County, if followed, will undermine the EFSEC process as well as the direction provided by the [state] legislature, and is in violation of EFSEC's preemption authority."

Zilkha contends the melding of planning/zoning and siting/permitting functions may be suitable for a large rural residential resort development in the county, such as MountainStar near Cle Elum, but not for wind projects, which the company argues are "wholly compatible with (and complementary to) rural land uses."

EFSEC already is undertaking most siting and permitting functions for Kittitas Valley, Taylor said, and should "look at zoning issues as well."

White said Zilkha could have appealed the county's revised wind farm regulations.

Zilkha also believes pre-emption would advance the state's interest in, among other things, "the provision of abundant energy at reasonable cost, with minimal adverse effects on the environment."

Zilkha had made "good faith efforts to resolve the land use inconsistencies," according to its pre-emption request. It criticized "constantly changing requirements" from the county and "unreasonable delay."

The filing said Kittitas County plans to review the adequacy of the Kittitas Valley draft EIS issued in December (see Con.WEB, Jan. 30, 2004). Zilkha believes this scrutiny is redundant (as EFSEC is the lead environmental review agency) and not allowed under state law.

White said the county doesn't want a final EIS, but it needed the draft version. "We rely on the draft EIS to set our public hearings and go through our public process," he said; EFSEC's environmental review schedule is beyond the county's control. "We're looking for solid, defensible information to be able to move forward."

It could take another 10 months or more following the draft EIS issuance for the county to make a decision, according to the Zilkha filing.

"At the end of the day, delay doesn't serve anybody but attorneys," Taylor said. A potentially two-year process for a wind farm permitting decision "is nothing short of absurb," he added.

Asked why Zilkha didn't oppose EFSEC's May ruling on seeking consistency with county rules, Taylor said, "We really wanted the county to make a land-use decision. We gave it as much time as we could."

White countered that Zilkha didn't apply for county approvals until June, nearly six months after its EFSEC application. He also said the company willingly chose state review, and that the nearby Desert Claim wind farm proposal is "moving along smooth as silk" through the county's review process.

Weaver questioned why Zilkha should avoid the county process. "It's a land-use decision," he said. The real estate professional thinks the Kittitas Valley project would drop property values, which he suggested would create a "taking" of private property, requiring compensation. Weaver noted he opposes this particular wind farm site, not wind energy in general. Zilkha's proposed Wild Horse project in sparsely populated eastern Kittitas County would be "fine," he said.

Even without the county process, Taylor said local concerns and issues would still be addressed by EFSEC. "I don't think there's any substantive difference," he said.

If pre-emption is granted, EFSEC rules would require consideration of the county's wind farm regulations, according to Makarow. However, she added, "We don't know at this point in time how that [consideration] would actually happen."

Her agency held a procedural conference Feb. 19 in Ellensburg on Zilkha's request. "One of the main questions before the council is when to make a decision on pre-emption," Makarow said. "There's a lot of differing opinions coming from the parties." Some argue the council should decide pre-emption first and then hear the substance of Zilkha's proposal, while others believe EFSEC should consider both and then render a decision. "Our rules on pre-emption lead to different interpretations," she said.

EFSEC should decide by early March how to move forward.