Eminent domain/electrical

AN ACT Relating to limiting the exercise of eminent domain for 1
the purposes of constructing electrical transmission facilities on 2
agricultural lands; amending RCW 80.50.060, 54.16.020, 35.84.030, and 3
80.32.060; adding a new section to chapter 8.25 RCW; and creating a 4
new section. 5
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:6
NEW SECTION. Sec. 1. (1) The legislature finds that: (a) 7
Washington's agricultural lands are a finite and irreplaceable 8
resource that is essential to the state's food security, economic 9
vitality, and rural heritage; (b) the state is experiencing a 10
significant and irreversible loss of productive farm and ranch 11
acreage, which threatens the long-term viability of the agricultural 12
sector; (c) to meet the state's growing energy needs, there is an 13
increasing demand for the construction and expansion of electrical 14
transmission infrastructure; (d) current planning and siting 15
practices for transmission lines often disproportionately target 16
agricultural lands because they are frequently flat, already cleared, 17
and perceived as a lower-cost option for infrastructure build-out; 18
and (e) the use of eminent domain to site transmission lines on 19
private agricultural land is devastating to farm families, disrupts 20
S-3904.1
SENATE BILL 6165
State of Washington 69th Legislature 2026 Regular Session
By Senators Boehnke and Dozier
Read first time 01/15/26. Referred to Committee on Environment,
Energy & Technology.
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multigenerational farming operations, and accelerates the conversion 1
of working lands to nonagricultural uses. 2
(2) The legislature further finds that: (a) Public lands are held 3
in trust for the benefit of the people and are intended for public 4
use; and (b) the transmission of electricity for the general welfare 5
constitutes a public use that is compatible with many existing public 6
lands and corridors. 7
(3) Therefore, it is the intent of the legislature to: (a) 8
Protect Washington's remaining farm and ranch lands from eminent 9
domain for the purpose of transmission infrastructure when feasible; 10
(b) ensure that public lands are utilized to the fullest extent 11
possible for public utility projects before private property rights 12
are infringed upon; and (c) require condemning authorities to 13
demonstrate that all feasible alternatives on public lands and 14
existing rights-of-way have been exhausted before exercising the 15
power of eminent domain on agricultural land. 16
Sec. 2. RCW 80.50.060 and 2025 c 261 s 3 are each amended to 17
read as follows: 18
(1)(a) The provisions of this chapter apply to the construction 19
of energy facilities which includes the new construction of energy 20
facilities and the reconstruction or enlargement of existing energy 21
facilities where the net increase in physical capacity or dimensions 22
resulting from such reconstruction or enlargement meets or exceeds 23
those capacities or dimensions set forth in RCW 80.50.020 (14) and 24
(29). No construction or reconstruction of such energy facilities may 25
be undertaken, except as otherwise provided in this chapter, without 26
first obtaining certification in the manner provided in this chapter.27
(b) If applicants proposing the following types of facilities 28
choose to receive certification under this chapter, the provisions of 29
this chapter apply to the construction, reconstruction, or 30
enlargement of these new or existing facilities: 31
(i) Facilities that produce refined biofuel, but which are not 32
capable of producing 25,000 barrels or more per day;33
(ii) Alternative energy resource facilities; 34
(iii) Electrical transmission facilities: (A) Of a nominal 35
voltage of at least 115,000 volts; and (B) located in more than one 36
jurisdiction that has promulgated land use plans or zoning 37
ordinances; 38
(iv) Clean energy product manufacturing facilities;39
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(v) Storage facilities; and 1
(vi) Fusion energy facilities. However, such a fusion energy 2
facility receiving site certification must also secure required 3
licenses and registrations, or equivalent authorizations, for 4
radiation control purposes from designated state or federal agencies.5
(c) All of the council's powers with regard to energy facilities 6
apply to all of the facilities in (b) of this subsection and these 7
facilities are subject to all provisions of this chapter that apply 8
to an energy facility. 9
(2)(a) The provisions of this chapter must apply to:10
(i) The construction, reconstruction, or enlargement of new or 11
existing electrical transmission facilities: (A) Of a nominal voltage 12
of at least 500,000 volts alternating current or at least 300,000 13
volts direct current; (B) located in more than one county; and (C) 14
located in the Washington service area of more than one retail 15
electric utility; and 16
(ii) The construction, reconstruction, or modification of 17
electrical transmission facilities when the facilities are located in 18
a national interest electric transmission corridor as specified in 19
RCW 80.50.045. 20
(b) For the purposes of this subsection, "modification" means a 21
significant change to an electrical transmission facility and does 22
not include the following: (i) Minor improvements such as the 23
replacement of existing transmission line facilities or supporting 24
structures with equivalent facilities or structures; (ii) the 25
relocation of existing electrical transmission line facilities; (iii) 26
the conversion of existing overhead lines to underground; or (iv) the 27
placing of new or additional conductors, supporting structures, 28
insulators, or their accessories on or replacement of supporting 29
structures already built. 30
(3) The provisions of this chapter shall not apply to normal 31
maintenance and repairs which do not increase the capacity or 32
dimensions beyond those set forth in RCW 80.50.020 (14) and (29).33
(4) Applications for certification of energy facilities made 34
prior to July 15, 1977, shall continue to be governed by the 35
applicable provisions of law in effect on the day immediately 36
preceding July 15, 1977, with the exceptions of RCW 80.50.071 which 37
shall apply to such prior applications and to site certifications 38
prospectively from July 15, 1977. 39
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(5) Applications for certification shall be upon forms prescribed 1
by the council and shall be supported by such information and 2
technical studies as the council may require. 3
(6)(a) An application for certification of an electrical 4
transmission facility must include:5
(i) A comprehensive evaluation of all feasible corridors located 6
on public lands or within existing rights-of-way; and7
(ii) If the proposed route crosses agricultural land, a detailed 8
explanation and evidentiary record demonstrating why the use of 9
public lands or existing rights-of-way is not a feasible alternative.10
(b) For the purposes of this subsection, "feasible alternative" 11
means an alternative project capable of being completed after taking 12
into consideration cost, existing technology, and logistics in light 13
of overall project purposes.14
(7) Upon receipt of an application for certification under this 15
chapter, the chair of the council shall notify: 16
(a) The appropriate county legislative authority or authorities 17
where the proposed facility is located; 18
(b) The appropriate city legislative authority or authorities 19
where the proposed facility is located; 20
(c) The department of archaeology and historic preservation; and21
(d) The appropriate federally recognized tribal governments that 22
may be affected by the proposed facility. 23
(((7))) (8) The council must work with local governments where a 24
project is proposed to be sited in order to provide for meaningful 25
participation and input during siting review and compliance 26
monitoring. 27
(((8))) (9) The council must consult with all federally 28
recognized tribes that possess resources, rights, or interests 29
reserved or protected by federal treaty, statute, or executive order 30
in the area where an energy facility is proposed to be located to 31
provide early and meaningful participation and input during siting 32
review and compliance monitoring. The chair and designated staff must 33
offer to conduct government-to-government consultation to address 34
issues of concern raised by such a tribe. The goal of the 35
consultation process is to identify tribal resources or rights 36
potentially affected by the proposed energy facility and to seek ways 37
to avoid, minimize, or mitigate any adverse effects on tribal 38
resources or rights. The chair must provide regular updates on the 39
consultation to the council throughout the application review 40
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process. The report from the council to the governor required in RCW 1
80.50.100 must include a summary of the government-to-government 2
consultation process that complies with RCW 42.56.300, including the 3
issues and proposed resolutions. 4
(((9))) (10) The department of archaeology and historic 5
preservation shall coordinate with the affected federally recognized 6
tribes and the applicant in order to assess potential effects to 7
tribal cultural resources, archaeological sites, and sacred sites.8
Sec. 3. RCW 54.16.020 and 1955 c 390 s 3 are each amended to 9
read as follows: 10
A district may construct, condemn and purchase, purchase, 11
acquire, lease, add to, maintain, operate, develop, and regulate all 12
lands, property, property rights, water, water rights, dams, ditches, 13
flumes, aqueducts, pipes and pipe lines, water power, leases, 14
easements, rights-of-way, franchises, plants, plant facilities, and 15
systems for generating electric energy by water power, steam, or 16
other methods; plants, plant facilities, and systems for developing, 17
conserving, and distributing water for domestic use and irrigation; 18
buildings, structures, poles and pole lines, and cables and conduits 19
and any and all other facilities; and may exercise the right of 20
eminent domain to effectuate the foregoing purposes or for the 21
acquisition and damaging of such property and rights, or property of 22
any kind appurtenant thereto, and for the purpose of acquiring the 23
right to make physical connection with plants and plant facilities of 24
all persons and municipalities. The right of eminent domain shall be 25
exercised pursuant to resolution of the commission and conducted in 26
the same manner and by the same procedure as is provided for the 27
exercise of that power by cities and towns of the state in the 28
acquisition of like property and property rights : PROVIDED, That for 29
the purpose of an electrical transmission facility, the power of 30
eminent domain shall not be exercised upon agricultural land, unless 31
the district first demonstrates that the use of public lands or 32
existing rights-of-way is not a feasible alternative. For the 33
purposes of this section, "feasible alternative" means an alternative 34
project capable of being completed after taking into consideration 35
cost, existing technology, and logistics in light of overall project 36
purposes. It shall be no defense to a condemnation proceeding that a 37
portion of the electric current generated or sold by the district 38
will be applied to private purposes, if the principal uses intended 39
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are public: PROVIDED, That no public utility owned by a city or town 1
shall be condemned, and none shall be purchased without submission of 2
the question to the voters of the utility district. In a condemnation 3
proceeding, the court shall submit to the jury the values placed upon 4
the property by the taxing authority for taxation purposes, and in 5
respect to property, plants, and facilities of persons using public 6
highways for furnishing public service without franchises, shall 7
consider in determining the value thereof the fact that the property, 8
plants, and facilities are subject to be removed from the highways by 9
reason of being so operated without a franchise. 10
NEW SECTION. Sec. 4. A new section is added to chapter 8.25 RCW 11
to read as follows: 12
(1) In any action brought by a condemning authority to acquire 13
property by eminent domain for the purpose of locating or 14
constructing an electrical transmission facility, the condemnor shall 15
bear the burden of proving that the condemnation is necessary for the 16
stated public use. 17
(2) If the property sought to be condemned is agricultural land, 18
the condemnor's burden of proof for establishing necessity under 19
subsection (1) of this section shall include, and be satisfied by, 20
clear and convincing evidence that: 21
(a) The condemning authority first made a good faith effort to 22
utilize public lands and existing rights-of-way as an alternative 23
corridor for the electrical transmission facility; and24
(b) No feasible alternative route exists on public lands or 25
within existing rights-of-way that would prevent the taking of the 26
productive agricultural land. 27
(3) If the court finds that the condemning authority has failed 28
to meet the burden of proof required under subsection (2) of this 29
section, the court shall enter a final adjudication that the 30
condemnor cannot acquire the property by condemnation, and the court 31
shall award the condemnee reasonable attorney's fees and reasonable 32
expert witness fees pursuant to RCW 8.25.070. 33
(4) For the purposes of this section: 34
(a) "Agricultural land" means any land meeting the definition of 35
"farm and agricultural land" or "farm and agricultural conservation 36
land" under RCW 84.34.020. 37
(b) "Public lands" means any land owned by the United States, the 38
state of Washington, or any political subdivision thereof, including 39
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but not limited to state forest lands, state trust lands, and lands 1
managed by the department of natural resources. 2
(c) "Feasible alternative" means an alternative project capable 3
of being completed after taking into consideration cost, existing 4
technology, and logistics in light of overall project purposes.5
Sec. 5. RCW 35.84.030 and 1965 c 7 s 35.84.030 are each amended 6
to read as follows: 7
Every city or town owning its own electric power and light plant 8
may exercise the power of eminent domain as provided by law for the 9
condemnation of private property for any of the corporate uses or 10
purposes of the city or town . For the purpose of an electrical 11
transmission facility, the power of eminent domain shall not be 12
exercised upon agricultural land, unless the city or town first 13
demonstrates that the use of public lands or existing rights-of-way 14
is not a feasible alternative. For the purposes of this section, 15
"feasible alternative" means an alternative project capable of being 16
completed after taking into consideration cost, existing technology, 17
and logistics in light of overall project purposes : PROVIDED, That no 18
city or town shall acquire, by purchase or condemnation, any publicly 19
or privately owned electric power and light plant or electric system 20
located in any other city or town except with the approval of a 21
majority of the qualified electors of the city or town in which the 22
property to be acquired is situated; nor shall any city or town 23
acquire by condemnation the electric power and light plant or 24
electric system, or any part thereof, belonging to or owned or 25
operated by any municipal corporation, mutual, nonprofit, or 26
cooperative association or organization, or by a public utility 27
district. 28
Sec. 6. RCW 80.32.060 and 1961 c 14 s 80.32.060 are each amended 29
to read as follows: 30
Every corporation, incorporated or that may hereafter be 31
incorporated under the laws of this state, or of any other state or 32
territory of the United States, and doing business in this state, for 33
the purpose of manufacturing or transmitting electric power, shall 34
have the right to appropriate real estate and other property for 35
right-of-way or for any corporate purpose, in the same manner and 36
under the same procedure as now is or may hereafter be provided by 37
law in the case of ordinary railroad corporations authorized by the 38
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laws of this state to exercise the right of eminent domain . For the 1
purpose of an electrical transmission facility, the power of eminent 2
domain shall not be exercised upon agricultural land, unless the 3
corporation first demonstrates that the use of public lands or 4
existing rights-of-way is not a feasible alternative. For the 5
purposes of this section, "feasible alternative" means an alternative 6
project capable of being completed after taking into consideration 7
cost, existing technology, and logistics in light of overall project 8
purposes: PROVIDED, That such right of eminent domain shall not be 9
exercised with respect to any public road or street until the 10
location of the transmission line thereon has been authorized in 11
accordance with RCW 80.32.010. 12
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