Bill Text: HI HB411 | 2021 | Regular Session | Introduced
Bill Title: Relating To Geothermal Resources.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2021-01-27 - Referred to EEP/WAL, CPC, FIN, referral sheet 1 [HB411 Detail]
Download: Hawaii-2021-HB411-Introduced.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
411 |
THIRTY-FIRST LEGISLATURE, 2021 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO GEOTHERMAL RESOURCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. The legislature finds that geothermal
development in Hawaii was formerly regulated in state and local jurisdictions
by using a system of subzones and permitting that was initially established by
Act 296, Session Laws of Hawaii 1983. The
system of geothermal regulation using subzones was repealed by Act 97, Session
Laws of Hawaii 2012.
The legislature further finds that there is a need for an appropriate framework to regulate geothermal development. This regulation should be based on former regulatory methods, the experience of geothermal operations in the county of Hawaii during the past several decades, and additional contemporary considerations.
The
legislature further finds that geothermal energy is a firm source of indigenous,
renewable energy that could be made available at low costs. Geothermal energy uses significantly less land
than other forms of renewable energy. Specifically,
researchers at the Hawaii groundwater and geothermal resources center at the university
of Hawaii have found that geothermal energy in Hawaii produces about one megawatt
of power per acre of land, compared to solar, which requires five to ten acres per
installed megawatt, and wind, which requires between thirty to one hundred acres
per installed megawatt. In addition, while
the output of solar- and wind-generated energy fluctuates seasonally and throughout
the day, geothermal energy is significantly more stable.
However,
the legislature also finds that geothermal energy's impacts to the environment and
public health and safety must also be taken into consideration to protect the public
from potentially dangerous incidents. In
1991, a geothermal well at the Puna Geothermal Venture experienced a blowout, resulting
in the release of about a ton of hydrogen sulfide in a short period. After releases of hydrogen sulfide gas at the same
plant in 2013, the Environmental Protection Agency conducted an inspection of the
plant, which found violations of the federal Clean Air Act. The Environmental Protection Agency concluded that
the company failed to take necessary steps to prevent accidental releases of hydrogen
sulfide and also found violations with respect to the company's storage, use, and
handling of pentane, a flammable substance used in the plant's turbines. These incidents have caused understandable concern
in the communities surrounding the geothermal plant.
To
alleviate these concerns, the legislature finds that the State must adopt a strong
and transparent regulatory framework that includes a requirement that geothermal
developments satisfy the State's environmental review process under chapter 343,
Hawaii Revised Statutes, and conduct a public hearing before a development is approved.
These steps would help to ensure that public
health and safety are protected; that the cultural, social, and economic impacts
of the development are understood before any construction is commenced; and that
conflicts with the communities surrounding the proposed development are minimized.
The legislature further finds that the county of Hawaii completed a Geothermal Public Health Assessment, and on March 17, 2014, Attorney General Opinion No. 14-1, "Management and Disposition of Geothermal Resources on DHHL Lands", concluded that the department of Hawaiian home lands is entitled to one hundred per cent of geothermal royalties from its lands.
The purpose of this Act is to:
(1) Establish a geothermal resources development permit procedure;
(2) Prohibit hydraulic fracturing; and
(3) Encourage the counties to implement the recommendations of the final report of the geothermal public health assessment working group.
SECTION 2. Chapter 196D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§196D- Geothermal
resources development permits. (a) A
permit for geothermal resources
development within an urban, rural, or agricultural district, as provided under
section 205-2, may be issued by the appropriate county authority.
(b) A permit for geothermal resources development
within a conservation district may be issued by the board.
(c) A permit for geothermal resources development
within the Hawaiian home lands may be issued by the Hawaiian homes commission,
in technical consultation with the board.
(d) In addition to the requirements of this section,
each county may adopt ordinances and rules to enhance protection of the environment
and of public health and safety.
(e) After accepting a duly filed and completed
application on forms to be furnished by the appropriate county authority, as
well as supporting data as may be required by the appropriate county authority,
the permitting entity shall conduct a public hearing on the island where the
geothermal resources development is proposed; provided that the public hearing
shall be conducted in geographic proximity to the area that may be affected by
the proposed geothermal development. For
purposes of the public hearing:
(1) The permitting
authority may summon witnesses, compel discovery and disclosure of evidence,
administer oaths, and require testimony from witnesses;
(2) The notice of
public hearing shall be published on three separate days in a newspaper of
general circulation in the county where the public hearing is held; provided
that the first publication of notice shall be not less than twenty days prior to
the date set for the hearing. The notice
shall be mailed to all owners of land within three thousand feet of the
proposed geothermal resources development.
Copies of the notice shall be submitted to the department of land and
natural resources, department of business, economic development, and tourism,
department of Hawaiian home lands, and planning commission and planning
department of the county in which the proposed geothermal development is located;
and
(3) Unless an
extension is agreed to by the applicant and the permitting authority, the
permitting authority shall issue a final decision not later than six months
after the conclusion of the public hearing.
If the decision is appealed, a contested case proceeding under section 91-9
shall be initiated.
(f) An applicant for a geothermal resources
development permit shall satisfy the environmental review requirements of
chapter 343 and shall include a detailed analysis of the following:
(1) The potential
for the production of geothermal energy in the area proposed by the applicant;
(2) The prospects
of the utilization of geothermal energy in the area;
(3) The potential
geologic hazards posed by the proposed development;
(4) Cultural,
social, and economic impacts of the proposed development;
(5) Health, safety,
and nuisance impacts on the surrounding land;
(6) The
compatibility of geothermal development and potentially related industries with
present uses of surrounding land;
(7) The
compatibility of geothermal development with the county general plan and county
land use policies in the county where the proposed development is located;
(8) The potential
economic benefits to the State and county anticipated to be derived from the
proposed development;
(9) Alternative
methods of electricity development in the same proposed quantity and area,
including the comparative impacts and benefits; and
(10) Emission
monitoring and emergency response measures that are appropriate for the area and
surrounding properties in which the proposed development is located.
(g) A geothermal resources development permit may
be issued if the permitting entity finds that:
(1) The
environmental review required under subsection (f) is complete and satisfactory;
(2) The applicant is in compliance
with applicable zoning ordinances and county plans; and
(3) The proposed
geothermal resources development would not:
(A) Have
unreasonable adverse health, environmental, or socioeconomic effects on
residents and surrounding property; or
(B) Unreasonably
burden public agencies in providing roads, streets, sewers, water, drainage,
school improvements, and police and fire protection;
provided that the permitting entity may prescribe
mitigating actions to be taken by the applicant to address any effects or burdens,
including the establishment of an appropriate buffer zone between the proposed
geothermal resource development and abutting land, as a condition of permit
approval."
SECTION 3. Chapter 344, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§344- Hydraulic fracturing prohibited. Hydraulic fracturing is prohibited."
SECTION 4. Section 182-6, Hawaii Revised Statutes, is amended to read as follows:
"§182-6
Exploration. Any person
wishing to conduct geothermal or mineral exploration on state lands or reserved
lands shall apply to the [board,] appropriate county authority, as defined
in section 196D- , which which shall issue exploration
permits [upon terms and conditions as it shall by rule prescribe.] in
accordance with section 196D- .
During and as a result of the exploration, no minerals of types and
quantity beyond that reasonably required for testing and analysis shall be
extracted and removed from the 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 exploration, shall be turned over to
the board and kept confidential by the board. If the person does 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 5. Section 196D-3, Hawaii Revised Statutes, is amended by adding six new definitions to be appropriately inserted and to read as follows:
""Appropriate
county authority" means the county planning commission unless another agency
or body is designated by ordinance of the county council.
"Board" means the board
of land and natural resources.
"Geothermal resources"
shall have the same meaning as in section 182-1.
"Geothermal resources
development" shall have the same meaning as in section 182-1.
"Permitting entity" means the appropriate county authority issuing a permit for geothermal resources development under section 196D- ."
SECTION 6. Section 196D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department is designated as the lead agency for the purposes of this chapter and, in addition to its existing functions, shall establish and administer the consolidated permit application and review process provided for in this chapter, except as provided under section 196D- , which shall incorporate the permitting functions of those agencies involved in the development of the project which are transferred by section 196D-10 to the department to effectuate the purposes of this chapter."
SECTION 7. Section 196D-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) [The] Except as provided in section
196D- , the department shall serve as the lead
agency for the consolidated permit application and review process established
pursuant to section 196D-4(b) and as set forth in this section for the
project. All agencies whose permitting
functions are not transferred by section 196D-10 to the department for the
purposes of the project are required to participate in the consolidated permit
application and review process."
SECTION 8. Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Those functions identified in paragraphs (1)
and (2) insofar as they relate to the permit application, review, processing,
issuance, and monitoring of laws, and rules and to the enforcement of terms,
conditions, and stipulations of permits and other authorizations issued by
agencies with respect to the development, construction, installation,
operation, maintenance, repair, and replacement of the project, or any portion
or portions thereof, are transferred to the [department.] counties under
section 196D- .
With respect to each of the statutory authorities cited in paragraphs
(1) and (2), the transferred functions include all enforcement functions of the
agencies or their officials under the statute cited as may be related to the
enforcement of the terms, conditions, and stipulations of permits, including
but not limited to the specific sections of the statute cited. "Enforcement", for purposes of this
transfer of functions, includes monitoring and any other compliance or oversight
activities reasonably related to the enforcement process. These transferred functions include:
(1) Such functions of the land use commission related to: district boundary amendments as set forth in section 205-3.1 et seq.; and changes in zoning as set forth in section 205-5; and
(2) The permit approval and enforcement functions of the director of transportation or other appropriate official or entity in the department of transportation related to permits or approvals issued for the use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266."
SECTION 9. Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Except as otherwise
provided, an environmental assessment shall be required for actions that:
(1) Propose
the use of state or county lands or the use of state or county funds, other
than funds to be used for feasibility or planning studies for possible future
programs or projects that the agency has not approved, adopted, or funded, or
funds to be used for the acquisition of unimproved real property; provided that
the agency shall consider environmental factors and available alternatives in
its feasibility or planning studies; provided further that an environmental
assessment for proposed uses under section 205‑2(d)(11) or 205-4.5(a)(13)
shall only be required pursuant to section 205-5(b);
(2) Propose
any use within any land classified as a conservation district by the state land
use commission under chapter 205;
(3) Propose
any use within a shoreline area as defined in section 205A-41;
(4) Propose
any use within any historic site as designated in the National Register or
Hawaii Register, as provided for in the Historic Preservation Act of 1966,
Public Law 89-665, or chapter 6E;
(5) Propose
any use within the Waikiki area of Oahu, the boundaries of which are delineated
in the land use ordinance as amended, establishing the "Waikiki Special
District";
(6) Propose
any amendments to existing county general plans where the amendment would result
in designations other than agriculture, conservation, or preservation, except
actions proposing any new county general plan or amendments to any existing
county general plan initiated by a county;
(7) Propose
any reclassification of any land classified as a conservation district by the
state land use commission under chapter 205;
(8) Propose
the construction of new or the expansion or modification of existing helicopter
facilities within the State, that by way of their activities, may affect:
(A) Any
land classified as a conservation district by the state land use commission
under chapter 205;
(B) A
shoreline area as defined in section 205A-41; or
(C) Any
historic site as designated in the National Register or Hawaii Register, as
provided for in the Historic Preservation Act of 1966, Public Law 89-665, or
chapter 6E; or until the statewide historic places inventory is completed, any
historic site that is found by a field reconnaissance of the area affected by
the helicopter facility and is under consideration for placement on the
National Register or the Hawaii Register of Historic Places; and
(9) Propose any:
(A) Wastewater
treatment unit, except an individual wastewater system or a wastewater treatment
unit serving fewer than fifty single-family dwellings or the equivalent;
(B) Waste-to-energy
facility;
(C) Landfill;
(D) Oil
refinery; [or]
(E) Power-generating
facility[.]; or
(F) Geothermal resources development, pursuant to
section 196D- (f)."
PART II
SECTION 10. The legislature finds that geothermal resources development can affect public health, safety, and well-being. The county of Hawaii funded a study of geothermal-related issues that resulted in a Geothermal Public Health Assessment Study Group's Final Report, Geothermal Public Health Assessment (2013). By preparing baseline studies that measure the parameters explored and described in the text and recommendations of the Final Report, future studies can more easily establish the magnitude of such effects.
The Final Report refers to the prevention of air and water pollution and excessive noise from geothermal development and states that related monitoring systems and protocols must be competent. Establishing competent monitoring systems and emergency response plans will help assure that the health and welfare of citizens will be protected.
Further, geothermal development may affect water wells downstream from the development area as well as the coastal basal brackish groundwater and the ocean near the geothermal plant. By establishing a baseline pursuant to recommendations of the Final Report, future water studies should be able to establish the magnitude and possible responsibility for environmental impacts from geothermal development.
Recommendation 8 of the Final Report is that the county should require future geothermal developers to fund and assure baseline studies prior to development.
The purpose of this part is to recommend and encourage each permitting entity to implement, by its rules or otherwise, certain recommendations of the Final Report, such as the creation of baseline studies as well as competent monitoring resources and protocols, prior to new geothermal drilling or development, that the permitting entity finds appropriate for its jurisdiction. Further, because geothermal resources development and exploration may present industrial levels of noise in or adjacent to residential areas, the permitting entities also are urged to assure that any permitted noise does not exceed levels that are appropriate in view of nearby residential properties and zoning.
SECTION 11.
This Act shall apply to any geothermal resources producer
operating within the jurisdiction of a permitting entity as of the effective
date of this Act. The geothermal resources
producer may continue to operate pursuant to existing permits until ninety days
after a permitting entity with jurisdiction adopts rules governing geothermal resources
development pursuant to this Act and chapter 91, Hawaii Revised Statutes. If, during the ninety-day period, the
geothermal resources producer submits an application to the permitting entity
in compliance with this Act and the rules,
the geothermal resources producer may continue to operate within the limits of
existing permits until action on the application has been completed.
PART III
SECTION 12. There is appropriated out of the general
revenues of the State of Hawaii the sum of $
or so much thereof as may be necessary for fiscal year 2021-2022 and the same sum
or so much thereof as may be necessary for fiscal year 2022-2023 as a
grant-in-aid, pursuant to article VIII, section 5 of the Constitution of the State
of Hawaii, to the county of Hawaii to administer geothermal resources development
permits pursuant to this Act.
The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
PART IV
SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect on July 1, 2021.
INTRODUCED BY: |
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Report Title:
Geothermal Energy; Permits; Hawaii County; Appropriation
Description:
Establishes a geothermal resources development permit system. Prohibits hydraulic fracturing. Appropriates funds to the county of Hawaii as a grant-in-aid to administer the permit system.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.