Bill Text: HI SB2663 | 2014 | Regular Session | Amended
Bill Title: BLNR; Mineral Resources; Geothermal Resources; Hydraulic Fracturing
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Engrossed - Dead) 2014-04-24 - Received notice of appointment of House conferees (Hse. Com. No. 713). [SB2663 Detail]
Download: Hawaii-2014-SB2663-Amended.html
|
THE SENATE |
S.B. NO. |
2663 |
|
TWENTY-SEVENTH LEGISLATURE, 2014 |
S.D. 2 |
|
|
STATE OF HAWAII |
H.D. 2 |
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO NATURAL RESOURCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. Chapter 182, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§182- Penalties, fees, and costs collected. All penalties, fees, and costs established and collected by the department pursuant to this chapter shall be deposited in the special land and development fund established under section 171‑19."
SECTION 2. Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§205- Geothermal resources development permits; objectives. (a) The establishment and regulation of geothermal permitting is intended to facilitate geothermal development activities in those areas in which the potential benefits to be derived from geothermal development and utilization in the proposed area are in the best interest of the county or counties involved and the State as a whole. The major objectives are to:
(1) Allow geothermal development activities to help achieve the State's goal of energy self-sufficiency and broaden the State's economic base through development of a natural resource;
(2) Allow geothermal development activities in areas where the activities would be of greater benefit to the State than the existing or future use of the areas; and
(3) Allow geothermal development activities in areas of the State that best demonstrate an acceptable balance among the criteria set forth in subsection (c).
(b) No geothermal resources development activity shall be undertaken without a geothermal resources development permit issued pursuant to this section. The use of an area or site for geothermal resources development within a conservation district shall be governed by the board. The appropriate county authority may issue a geothermal resources development permit to allow geothermal resources development in an agricultural, rural, or urban district regardless of whether the geothermal resources development is considered a permissible use under the applicable county zoning ordinances or general plan; provided that the appropriate county authority complies with the requirements set forth in this section.
(c) To ensure that a prospective geothermal resources development activity has the least detrimental environmental and social impact, any application to obtain a geothermal resources development permit from a government entity shall provide, at a minimum, the following:
(1) An assessment of any potential geologic hazards relating to geothermal production or use in the proposed area;
(2) An assessment of any environmental, cultural, or social impacts within the proposed area;
(3) An assessment of the compatibility of development and utilization of geothermal resources with other permissible uses within the proposed area or site and within the surrounding area;
(4) A description of the proposed geothermal resources development, including the potential for health, safety, and nuisance impacts upon surrounding properties; control of potentially impacted surface lands or approval from the landowners of the potentially impacted surface lands; and establishment of an appropriate buffer zone between the proposed geothermal resources development and abutting land;
(5) An assessment of whether the potential benefits to be derived from the proposed geothermal resources development and potential related industries in the area are in the interests of the resident population, the applicable county, and the State; and
(6) An assessment of the potential for geothermal resources development in the proposed area and the known or likely prospect for utilization of new electrical energy production in the area.
Within sixty days of receiving the application, the government entity shall determine whether the application is complete and inform the applicant of any deficiency in the application.
(d) If an application for proposed geothermal resources development contains all required information, the board or appropriate county authority shall conduct a public hearing on the same island and in reasonably close proximity to the proposed permit area that would be affected by the proposed geothermal resources development, and publish a notice of the public hearing setting forth:
(1) A description of the proposed project and area for permitting;
(2) An invitation for public comment; and
(3) The date, time, and place of the public hearing where written or oral testimony may be submitted or heard.
The notice shall be published on three separate days in a newspaper of general circulation in the county in which the public hearing is to be held. The first publication shall be not less than twenty days prior to the date set for the hearing. The notice shall also be mailed to all owners of land within three thousand feet of the proposed geothermal resources development not less than twenty days before the date set for the hearing. Copies of the notice shall be submitted to the department of land and natural resources, the department of business, economic development, and tourism, and the planning commission and planning department of the county in which the proposed permit area is located.
(e) At the close of the public hearing pursuant to subsection (d), the board or appropriate county authority shall consider all the testimony and after deliberation make a decision to approve or disapprove the permit, or announce the date on which it will render its decision. A decision shall be made by the board or appropriate county authority within six months of the date a complete application is filed; provided that the time limit may be extended by agreement between the applicant and the board or appropriate county authority. The board or appropriate county authority may impose reasonable conditions and restrictions upon the permit in support of its findings. The board or appropriate county authority shall grant a geothermal resources development permit if it finds that:
(1) The proposed area has potential for geothermal development activities;
(2) There is a known or likely prospect for the utilization of geothermal resources for electrical energy production;
(3) Any potential geologic hazards to geothermal production or use in the area have been examined;
(4) Any environmental or social impacts of the development of geothermal resources within the proposed area have been considered;
(5) The proposed geothermal development would not have unreasonable adverse health, environmental, or socioeconomic effects on residents or surrounding property, except as provided in paragraph (8);
(6) The compatibility of development and utilization of geothermal resources within the area is considered with other permissible uses within the proposed area and within the surrounding lands;
(7) The proposed geothermal development would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection, except as provided in paragraph (8);
(8) There are reasonable measures available to mitigate the adverse effects or burdens referred to in paragraphs (5) and (7), which the board or appropriate authority shall have the authority to prescribe as conditions for the permit; and
(9) The potential benefits to be derived from geothermal development and utilization in the proposed area are in the interest of the county or counties involved and the State as a whole.
Upon request, the board or appropriate county authority shall issue a concise statement of its findings and the principal reasons for its decision to approve or disapprove a permit.
(f) Any decision made by the board or appropriate county authority pursuant to this section may be appealed directly on the record to the intermediate court of appeals for review. The appropriate county authority or the board shall provide a court reporter to produce a transcript of the proceedings at all public hearings under this section for purposes of an appeal.
(g) For the purposes of an appeal from a decision for a geothermal resources development permit, the record shall include:
(1) The application for the permit and all accompanying supporting documents, including but not limited to reports, studies, affidavits, statements, and exhibits;
(2) Staff recommendations submitted to the board or the appropriate county authority in consideration of the application;
(3) Oral and written public testimony received at the public hearings;
(4) Written transcripts of the proceedings at the public hearings;
(5) A statement of relevant matters noticed by the board or appropriate county authority at the public hearings;
(6) The written decision issued in connection with the application and public hearings; and
(7) Any other documents as may be required by the board or appropriate county authority for disposition of the permit application.
(h) For purposes of this section:
"Appropriate county authority" means the county planning commission or, if applicable, the respective county agency or body designated by county charter or ordinance to issue geothermal resources development permits.
"Board" means the board of land and natural resources."
SECTION 3. Section 171-95, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) For the purposes of this section, "renewable energy producer" means:
(1) Any producer or developer of electrical or thermal energy produced by wind, solar energy, hydropower, geothermal resources, landfill gas, waste-to-energy, ocean thermal energy conversion, cold seawater, wave energy, biomass, including municipal solid waste, biofuels or fuels derived from organic sources, hydrogen fuels derived primarily from renewable energy, or fuel cells where the fuel is derived primarily from renewable sources that sell all of the net power produced from the demised premises to an electric utility company regulated under chapter 269 or that sells all of the thermal energy it produces to customers of district cooling systems; provided that up to twenty-five per cent of the power produced by a renewable energy producer and sold to the utility or to district cooling system customers may be derived from fossil fuels; or
(2) Any grower or producer of plant or animal materials used primarily for the production of biofuels or other fuels; provided that nothing herein is intended to prevent the waste product or byproduct of the plant or animal material grown or produced for the production of biofuel, other fuels, electrical energy, or thermal energy, from being used for other useful purposes."
SECTION 4. Section 182-1, Hawaii Revised Statutes, is amended as follows:
1. By adding a new definition to be appropriately inserted and to read:
""Department" means the department of land and natural resources."
2. By amending the definitions of "geothermal resources", "geothermal resources exploration", and "mining lease" to read:
""Geothermal resources" means the natural heat of the earth,
the energy, in whatever form, below the surface of the earth present in,
resulting from, or created by, or [which] that may be extracted
from, [such] the natural heat, and all minerals in solution or
other products obtained from naturally heated fluids, brines, associated gases,
and steam, in whatever form, found below the surface of the earth, but
excluding oil, hydrocarbon gas, or other hydrocarbon substances[, and
any water, mineral in solution, or other product obtained from naturally heated
fluids, brines, associated gases, and steam, in whatever form, found below the
surface of the earth, having a temperature of 150 degrees Fahrenheit or less,
and not used for electrical power generation].
"Geothermal resources exploration" means either of the following:
(1) Conducting non-invasive geophysical operations, including geochemical operations, remote sensing, and other similar techniques; or
(2) Drilling exploration wells for, but not limited to, the extraction and removal of minerals of types and quantities;
that are reasonably required for testing and analysis to provide ground truth or determine the economic viability of geothermal resources. The term does not include "geothermal resources development".
"Mining
lease" means a lease of the right to conduct mining operations, including
geothermal resource exploration or development, on state lands and [on lands
sold or leased by the State or its predecessors in interest with a reservation
of mineral rights to the State.] reserved lands."
SECTION 5. Section 182-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a)
All minerals in, on, or under state lands or reserved lands [which
hereafter become state lands] are reserved to the State; provided that the
board [of land and natural resources] may release, cancel, or waive the
reservation whenever it deems the land use, other than mining, is of greater
benefit to the State as provided for in section 182-4. [Such] The
minerals are reserved from sale or lease except as provided in this chapter. A
purchaser or lessee of [any such] the lands shall acquire no
right, title, or interest in or to the minerals. The right of the purchaser or
lessee shall be subject to the reservation of all the minerals and to the
conditions and limitations prescribed by law providing for the State and
persons authorized by it to prospect for, mine, and remove the minerals, and to
occupy and use so much of the surface of the land as may be required for all
purposes reasonably extending to the mining and removal of the minerals
therefrom by any means whatsoever."
SECTION 6. Section 182-4, Hawaii Revised Statutes, is amended to read as follows:
"§182-4
Mining leases on state lands. (a) If any mineral is discovered or known
to exist on state lands, any interested person may notify the board [of land
and natural resources] of the person's desire to apply for a mining lease.
The notice shall be accompanied by [a fee of $100] the required fees
as established by the department, together with a description of the land
desired to be leased [and], the minerals involved, and any
information and maps that the board by rule may prescribe. As soon as
practicable thereafter, the board shall cause a public notice to be given in
the county where the lands are located, at least once in each of three
successive weeks, setting forth the description of the land, and the minerals
desired to be leased. The board may hold the public auction of the mining
lease within six months from the date of the first notice or any further time
that may be reasonably necessary. Whether or not the state land sought to be
auctioned is then being utilized or put to some productive use, the board,
after due notice of public hearing to all parties in interest, within six weeks
from the date of the first notice or any further time that may be reasonably
necessary, shall determine whether the proposed mining operation or the
existing or reasonably foreseeable future use of the land would be of greater
benefit to the State. If the board determines that the existing or reasonably
foreseeable future use would be of greater benefit to the State than the
proposed mining use of the land, it shall disapprove the application for a
mining lease of the land without putting the land to auction. The board shall
determine the area to be offered for lease and, after due notice of public
hearing to all parties in interest, may modify the boundaries of the land
areas. At least thirty days prior to the holding of any public auction, the
board shall cause a public notice to be given in the State at least once in
each of three successive weeks, setting forth the description of the land, the
minerals to be leased, and the time and place of the auction. Bidders at the
public auction may be required to bid on the amount of annual rental to be paid
for the term of the mining lease based on an upset price fixed by the board, a
royalty based on the gross proceeds or net profits, cash bonus, or any
combination or other basis and under any terms and conditions that may be set
by the board.
(b)
Any provisions to the contrary notwithstanding, if the person who discovers the
mineral discovers it as a result of exploration permitted under section 182-6,
and if that person bids at the public auction on the mining lease for the right
to mine the discovered mineral and is unsuccessful in obtaining such lease,
that person shall be reimbursed by the person submitting the highest successful
bid at public auction for the direct or indirect costs incurred in the exploration
of the land, excluding salaries, [attorneys] attorney's fees,
and legal expenses. The department [shall have the authority to] may
review and approve all expenses and costs that may be reimbursed.
(c) Any proposed mining operations to be undertaken by a renewable energy producer, as defined in section 171-95(c), shall require an application to the board for a mining lease on state lands. Any provisions to the contrary notwithstanding, the application for a mining lease on state lands pursuant to this subsection may be granted by the board in accordance with this section, or the board, by the vote of two-thirds of the members to which the board is entitled, may grant a mining lease to the renewable energy producer without public auction."
SECTION 7. Section 182-5, Hawaii Revised Statutes, is amended to read as follows:
"§182-5
Mining leases on reserved lands. If any mineral is discovered or known to
exist on reserved lands, any interested person may notify the board [of land
and natural resources] of the person's desire to apply for a mining lease.
The notice shall be accompanied by [a fee of $100] the required fees,
as established by the department, together with a description of the land
desired to be leased and the minerals involved and [such] information
and maps as the board may by [regulation] rule prescribe. The
board may grant a mining lease on reserved lands in accordance with section
182-4, or the board [may], by the vote of two-thirds of [its] the
members to which the board is entitled, without public auction, may
grant a mining lease on reserved lands to the occupier thereof. [Such a]
A mining lease may be granted to a person other than the occupier if the
occupier has assigned the occupier's rights to apply for a mining lease to another
person, in which case only [such] an assignee may be granted a mining
lease. Any provisions to the contrary notwithstanding, if the board decides
that it is appropriate to grant a geothermal mining lease on the reserved
lands, the surface owner or the owner's assignee shall have the first right of
refusal for a mining lease. If the occupier or the occupier's assignee of the
right to obtain a mining lease should fail to apply for a mining lease within
six months from the date of notice from the board of a finding by the board
that it is in the public interest that the minerals on the reserved lands be
mined, a mining lease shall be granted under section 182-4; provided that
bidders at the public auction shall bid on an amount to be paid to the State for
a mining lease granting to the lessee the right to exploit minerals reserved to
the State."
SECTION 8. Section 182-6, Hawaii Revised Statutes, is amended to read as follows:
"§182-6
Exploration. Any person wishing to conduct geothermal resources
exploration on state lands or reserved lands shall apply to the board [of
land and natural resources who], which shall issue
exploration permits upon terms and conditions as it shall by [regulation]
rule prescribe. During and as a result of the exploration, no minerals
of [such] types and quantity beyond that reasonably required for testing
and analysis shall be extracted and removed from [such] state lands[.]
or reserved lands. Upon termination of the exploration permit, all
exploration data, including but not limited to the drill logs and the
results of the assays resulting from the geothermal resources exploration,
shall be turned over to the board and kept confidential by the board. If the
person shall not make application for a mining lease of the lands within a
period of six months from the date the information is turned over to the board,
the board in its discretion need not keep the information confidential.
This section shall be construed as authorizing the board to issue an exploration permit for geothermal resources as well as minerals."
SECTION 9. Section 182-7, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Prior to the public auction contemplated in section 182-4 or
182-5, or the granting of mining lease without public auction contemplated in
section 182-4 or 182-5, the board [of land and natural resources]
shall cause a mining lease for the land in question to be drawn. The lease
shall describe the land and shall contain, in addition to such other provisions
which the board may deem appropriate, specific provisions as provided in this
section."
2. By amending subsections (d) through (f) to read:
"(d) The lessee shall covenant and agree that the lessee shall commence mining operations upon the leased lands within three years from the date of execution of the lease; provided that so long as the lessee is actively and on a substantial scale engaged in mining operations on at least one such lease on the same minerals, the covenant shall be suspended as to all other leases held by the lessee.
Any
interested party may[, however,] request that a mining lease contain a
research period under which the lessees shall be required to expend money in
research and development to establish a method to make economical the mining
and processing of the [mineral deposits contained] minerals
identified in the lease. If the board determines that the research period
would be beneficial, it shall fix the period of research and shall also
fix a minimum expenditure for labor performed or money spent by the lessee [in]
on research and development and the method by which the lessee shall
establish that such expenditure in fact be made. In [such] these
leases, the obligation to commence mining operations within three years shall
not commence until the expiration of the research period.
(e)
For the period of the lease the lessee shall have the exclusive right of
possession of the minerals leased and the exclusive rights to mine and remove
the minerals by means [which] that shall be reasonable and
satisfactory to the board and to occupy and use so much of the surface of the
land as may reasonably be required, subject to the provisions of section
182-3. The right to use the surface shall include the right to erect transportation
facilities thereon, construct plants for beneficiating, drying, and processing
the minerals for electric power generation and transmission and [such]
other uses as may be approved by the board. The other uses may include but
need not be limited to uses necessary or convenient to the [winning and]
processing of the minerals; provided that the lessee shall comply with all
water and air pollution control laws, and rules of the State or its political
subdivisions.
(f)
The lessee may retain all minerals separated from the land as a part of the
process of mining the minerals specified in the mining lease; provided that the
lease may prescribe the accounting and testing procedures by which the amount
and quality of [such] the additional materials shall be determined
for the purpose of computing the excise tax thereon[.] and the applicable
royalty that may be set by the board for the use of the minerals."
SECTION 10. Section 182-9, Hawaii Revised Statutes, is amended to read as follows:
"§182-9
Deposit; first year's rental. All bidders [shall], prior to
the date of public auction, shall post with the board [of land and
natural resources a deposit of $500.] the required deposit, as
established by the department. The board shall refund to unsuccessful bidders
[such] the amount within two days after the auction. All
bidders, prior to the auction, shall satisfy the board of their financial
ability to conduct mining operations and of their capability to develop a
mine. The successful bidder shall pay to the board the amount of the first
year's rental within two days after the acceptance of the bid by the board and
the [$500 deposit] required deposit, as established by the
department, shall be credited against [such] the sum. If the
deposit exceeds the first year's rental, the excess shall be refunded. All
rentals thereafter are payable in advance once a year."
SECTION 11. Section 182-10, Hawaii Revised Statutes, is amended to read as follows:
"§182-10
Revocation of mining leases. A mining lease may be revoked if the lessee
fails to pay rentals when due or if any of the terms of the lease or of law are
not complied with, or if the lessee wholly ceases all mining operations for
other than reasons of force majeure or the uneconomic operation of the mining lease
for a period of one year without the written consent of the board [of land
and natural resources]; provided that the board shall give the lessee
notice of any default and the lessee shall have six months or such other time
limit as provided by the rules [and regulations] from the date of the
notice to remedy the default."
SECTION 12. Section 182-14, Hawaii Revised Statutes, is amended to read as follows:
"§182-14
Rules [and regulations]. Subject to chapter 91, the board [of
land and natural resources] may [make, promulgate] adopt
and amend [such] rules [and regulations] as it deems necessary to
carry out this chapter and to perform its duties thereunder, all commensurate
with and for the purpose of protecting the public interest. All [such]
rules [and regulations] shall have the force and effect of law."
SECTION 13. Section 182-17, Hawaii Revised Statutes, is amended to read as follows:
"[[]§182-17[]]
Penalty for violation. (a) Any person who violates any provision
of this chapter, or any [regulation] rule adopted pursuant [hereto,
shall be fined not more than $500 for each offense.] to this chapter,
shall be subject to a fine imposed by the board;
provided that the fine shall not exceed $5,000 per violation. If any person after receiving written
notice for a violation fails to cure [such] the violation within
[such] the time and under [such] conditions as determined
by [the rules and regulations,] the board, [such] the
person shall be subject to a citation for a new and separate violation. There
shall be a fine of not more than [$500] $5,000 for each
additional violation.
(b) No provision of this chapter shall bar the right of any injured person to seek other legal or equitable relief against a violator of this chapter.
(c) Except as otherwise provided by law, the board or its authorized representative by proper delegation may:
(1) Set, charge, and collect administrative fines or bring legal action to recover administrative fees and costs as documented by receipts or affidavit, including attorney's fees and costs; and
(2) Bring legal action to recover administrative fines, fees, and costs, including attorney's fees and costs, or payment for damages resulting from a violation of this chapter or any rule adopted pursuant to this chapter."
SECTION 14. Section 205-2, Hawaii Revised Statutes, is amended by amending subsections (b) through (d) to read as follows:
"(b) Urban districts shall include activities or uses as provided by ordinances or regulations of the county within which the urban district is situated.
In addition, urban districts
shall include geothermal resources exploration and geothermal resources
development, as defined under section 182-1, as permissible uses[.];
provided that a geothermal resources development permit may be required for
geothermal resources development in accordance with section 205- .
(c) Rural districts shall
include activities or uses as characterized by low density residential lots of
not more than one dwelling house per one-half acre, except as provided by
county ordinance pursuant to section 46-4(c), in areas where
"city-like" concentration of people, structures, streets, and urban
level of services are absent, and where small farms are intermixed with low
density residential lots except that within a subdivision, as defined in
section 484-1, the commission for good cause may allow one lot of less than
one-half acre, but not less than eighteen thousand five hundred square
feet, or an equivalent residential density, within a rural subdivision
and permit the construction of one dwelling on [such] the lot;
provided that all other dwellings in the subdivision shall have a minimum lot
size of one-half acre or 21,780 square feet. [Such] The petition
for variance may be processed under the special permit procedure. These
districts may include contiguous areas which are not suited to low density
residential lots or small farms by reason of topography, soils, and other
related characteristics. Rural districts shall also include golf courses, golf
driving ranges, and golf-related facilities.
In addition to the uses
listed in this subsection, rural districts shall include geothermal resources
exploration and geothermal resources development, as defined under section 182‑1,
as permissible uses[.]; provided that a geothermal resources
development permit may be required for geothermal resources development in
accordance with section 205- .
(d) [Agricultural] Permissible
uses in agricultural districts shall include:
(1) Activities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry;
(2) Farming activities or uses related to animal husbandry and game and fish propagation;
(3) Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;
(4) Wind generated energy production for public, private, and commercial use;
(5) Biofuel production, as described in section 205‑4.5(a)(16), for public, private, and commercial use;
(6) Solar energy facilities; provided that:
(A) This paragraph shall apply only to land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class B, C, D, or E; and
(B) Solar energy facilities placed within land with soil classified as overall productivity rating class B or C shall not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser;
(7) Bona fide agricultural services and uses that support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, regardless of whether conducted on the same premises as the agricultural activities to which they are accessory, including farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, agricultural-energy facilities as defined in section 205-4.5(a)(17), vehicle and equipment storage areas, and plantation community subdivisions as defined in section 205‑4.5(a)(12);
(8) Wind machines and wind farms;
(9) Small-scale meteorological, air quality, noise, and other scientific and environmental data collection and monitoring facilities occupying less than one-half acre of land; provided that these facilities shall not be used as or equipped for use as living quarters or dwellings;
(10) Agricultural parks;
(11) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;
(12) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;
(13) Open area recreational facilities;
[[](14)[]] Geothermal
resources exploration and geothermal resources development, as defined under
section 182-1; provided that a geothermal resources development permit may
be required for geothermal resources development in accordance with section
205- ; and
[[](15)[]] Agricultural-based
commercial operations, including:
(A) A roadside stand that is not an enclosed structure, owned and operated by a producer for the display and sale of agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii;
(B) Retail activities in an enclosed structure owned and operated by a producer for the display and sale of agricultural products grown in Hawaii, value-added products that were produced using agricultural products grown in Hawaii, logo items related to the producer's agricultural operations, and other food items; and
(C) A retail food establishment owned and
operated by a producer and permitted under [[]title 11,[]]
chapter 12 of the rules of the department of health that prepares and serves
food at retail using products grown in Hawaii and value-added products that
were produced using agricultural products grown in Hawaii.
The owner of an agricultural-based commercial operation shall certify, upon request of an officer or agent charged with enforcement of this chapter under section 205-12, that the agricultural products displayed or sold by the operation meet the requirements of this paragraph.
Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d). Agricultural districts include areas that are not used for, or that are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics."
SECTION 15. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:
(1) Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;
(2) Game and fish propagation;
(3) Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;
(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;
(5) Public institutions and buildings that are necessary for agricultural practices;
(6) Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;
(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;
(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;
(9) Agricultural-based
commercial operations as described in section [[]205-2(d)(15)[]];
(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);
(11) Agricultural parks;
(12) Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:
(A) The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;
(B) The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or
(C) The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;
(13) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;
(14) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;
(15) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land;
(16) Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuel processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.
For the purposes of this paragraph:
"Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuel processing facilities.
"Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy;
(17) Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity. To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise. The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.
As used in this paragraph:
"Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.
"Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.
"Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.
"Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;
(18) Construction and operation of wireless communication antennas; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection;
(19) Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations. For the purposes of this section, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;
(20) Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A; or
[[](21)[]] Geothermal
resources exploration and geothermal resources development, as defined under
section 182‑1[.]; provided that a geothermal resources development
permit may be required for geothermal resources development in accordance with
section 205- ."
SECTION 16. Section 205-5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:
(1) Low density residential uses;
(2) Agricultural uses;
(3) Golf courses, golf driving ranges, and golf-related facilities;
(4) Public, quasi-public, and public utility facilities; and
(5) Geothermal resources exploration and geothermal
resources development, as defined under section 182‑1[.];
provided that a geothermal resources development permit may be required for
geothermal resources development in accordance with section 205- .
In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2."
SECTION 17. Sections 182-3(a), 182-11, 182-13, and 182-15, Hawaii Revised Statutes, are amended by substituting the word "board" wherever the phrase "board of land and natural resources" appears, as the context requires.
PART II
SECTION 18. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
hydraulic fracturing
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"Board" means the board of land and natural resources.
"Fluid" means any material or substance that flows or moves whether in semi-solid, liquid, sludge, gas, or any other form or state.
"Hydraulic fracturing" means a drilling operation into an underground geologic formation and the injection of fluids, gases, chemicals, sand, or any other substance with the intention to cause or enhance fractures in the geologic formation for the purpose of instigating or increasing the porosity or permeability of the geologic formation to initiate or increase the production of a desired commodity from a well; provided that this term shall not include a drilling operation into an underground geologic formation for the purpose of obtaining drinking water. Hydraulic fracturing is also known as "fracking", "hydro-fracking", "hydro-fracturing", "hydro-shearing", "hydraulic shearing", "hydro-stimulation", or "enhanced geothermal drilling".
§ -2 Hydraulic fracturing; prohibited. (a) It shall be unlawful for any person, corporation, or other business entity to engage in hydraulic fracturing within the State.
(b) It shall be unlawful for any person, corporation, or other business entity to collect, transport, store, process, or discharge waste fluid from hydraulic fracturing within the State without first obtaining a permit to do so.
§ -3 Penalty; injunction. Any person, corporation, or other entity that violates section -2 shall be fined not more than $100,000 for every violation.
Any person, corporation, or other entity that violates section -2 may also be enjoined by the circuit court from continuing the violation.
The penalty and remedy provided by this section shall be in addition to any criminal or civil penalty provided by any other law.
§ -4 Enforcement. The board or its authorized representative may charge and collect the fines set forth pursuant to section -3 and bring legal action to enjoin conduct prohibited by this chapter."
SECTION 19. This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
PART III
SECTION 20. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 21. This Act shall take effect on July 1, 2014; provided that part II shall be repealed on July 1, 2025.
Report Title:
BLNR; Mineral Resources; Geothermal Resources; Hydraulic Fracturing
Description:
Establishes a permitting process for geothermal resources development by the BLNR and the appropriate county authorities. Deposits penalties, fees, and costs related to mineral rights into the special land and development fund. Prohibits hydraulic fracturing and disposition within the State of wastewater from hydraulic fracturing through July 1, 2025. Provides for penalties and enforcement. (SB2663 HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
