Bill Text: HI SB441 | 2013 | Regular Session | Introduced
Bill Title: County of Hawaii Package; Geothermal Resources; Exploration; Development
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-01-22 - Referred to ENE/WTL/PSM, WAM. [SB441 Detail]
Download: Hawaii-2013-SB441-Introduced.html
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THE SENATE |
S.B. NO. |
441 |
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TWENTY-SEVENTH LEGISLATURE, 2013 |
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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 purpose of this Act is to address geothermal resource exploration and development in the State and to provide for a comprehensive statutory scheme that is exclusive and uniform throughout the State.
More specifically:
(1) Part II amends chapter 182, Hawaii Revised Statutes, to expressly provide that geothermal resource exploration permits for reserved lands shall be issued by the board of land and natural resources. The board’s rules currently provide for the issuance of such exploration permits for both state and reserved lands, and the statute should be consistent with those rules; and
(2) Part III amends chapter 205, Hawaii Revised Statutes, to provide the board of land and natural resources with the authority to issue a permit for geothermal resource development activities on lands within the conservation district and to authorize county authorities within the respective counties to issue permits for geothermal resource development activities on lands within the agricultural, rural, and urban districts, where the respective county does not have legislation in place that permits geothermal resource development.
PART II
SECTION 2. Section 182-6, Hawaii Revised Statutes, is amended to read as follows:
"§182-6 Exploration. Any person wishing to conduct exploration on state or reserved lands shall apply to the board of land and natural resources who shall issue exploration permits upon terms and conditions as it shall by regulation 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 or reserved lands. Upon termination of the exploration permit, 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 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."
PART III
SECTION 3. Chapter 205A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§205-A Geothermal resource development permits. (a) Activities within the conservation district shall be governed by the board in accordance with subsection (b); and in an agricultural, rural, or urban district, the appropriate county authority may issue a geothermal resource permit to allow geothermal development activities in accordance with subsections (c) and (d), if the development is not considered a permissible use under applicable county ordinance or general plan.
"Appropriate county authority" means the county planning commission unless the respective county’s agency or body is designated by applicable provisions of the charter or by ordinance of the county council to issue development permits.
(b) If geothermal development activities are proposed within a conservation district by an application containing all required data, the board of land and natural resources shall conduct a public hearing, and upon appropriate request for mediation from any party who submitted written comment at the public hearing, the board shall appoint a mediator within fourteen days. The board shall require the parties to participate in mediation. The mediator shall not be a member of the board or its staff. The mediation period shall not extend beyond sixty days after the date mediation started, except by order of the board. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator will submit a written recommendation to the board based upon any mediation agreement reached between any of the parties for consideration by the board in its final decision. If there is no mediation agreement on all the issues raised at the public hearing, the board may conduct a second public hearing to receive additional comments related to the mediation issues. Within ten days after the second public hearing, the board may receive additional written comments on the issues raised at the second public hearing from any party.
The board shall consider the comments raised at the second hearing before rendering its final decision. The board shall then determine whether, pursuant to rule, a conservation district use permit shall be granted to authorize the geothermal development activities described in the application. The board shall grant a conservation district use permit if it finds that:
(1) The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; and
(2) The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection; or
(3) There are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to above, which the board shall have the authority to prescribe as conditions for the proposed geothermal resource development.
A decision shall be made by the board 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. The board shall have the exclusive authority to impose reasonable conditions and restrictions upon the proposed development activities in support of its findings, except to the extent that the department of health and other state and federal agencies have jurisdiction to regulate such activities.
(c) If geothermal resource development activities are proposed within agricultural, rural, or urban districts, and the proposed activities are not expressly permitted uses pursuant to county general plan and zoning ordinances, then, after receipt of a properly filed and completed application, including all required supporting data, the appropriate county authority shall conduct a public hearing. Upon appropriate request for mediation from any party who submitted written comment at the public hearing, the county authority shall appoint a mediator within fourteen days. The county authority shall require the parties to participate in mediation. The mediator shall not be an employee of any county agency or its staff. The mediation period shall not extend beyond sixty days after mediation started, except by order of the county authority. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator shall submit a written recommendation to the county authority, based upon any mediation agreement reached between any of the parties for consideration by the county authority in its final decision. If there is no mediation agreement on the issues raised during the public hearing, the county authority may conduct a second public hearing to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the county authority may receive additional written comment on the issues raised at the second public hearing from any party.
The county authority shall consider the comments raised at the second hearing before rendering its final decision. The county authority shall then determine whether a geothermal resource permit shall be granted to authorize the geothermal development activities described in the application. The appropriate county authority shall grant a geothermal resource permit if it finds that the applicant has demonstrated that:
(1) The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property;
(2) The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; and
(3) There are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to above, which the county authority may prescribe as conditions for the proposed geothermal resource development.
Unless there is a mutual agreement to extend the proceeding, a decision shall be made on the application by the appropriate county authority within six months of the date a complete application was filed; provided that the time limit may be extended by agreement between the applicant and the appropriate county authority. The board or county authority shall have exclusive authority to impose reasonable restrictions and conditions for the geothermal development activities in support of its findings, except to the extent that the department of health and other federal and state agencies have jurisdiction to regulate such activities.
(d) Requests for mediation shall be received by the board or county authority within five days after the close of the initial public hearing. Within fourteen days thereafter, the board or county authority shall appoint a mediator. Any person submitting an appropriate request for mediation shall be notified by the board or county authority of the date, time, and place of the mediation conference by depositing the notice in the mail to the return address stated on the request for mediation. The notice shall be mailed no later than ten days before the start of the mediation conference. The conference shall be held on the island where the public hearing is held.
(e) Any decision made by an appropriate county authority or the board pursuant to a public hearing or hearings under this section may be appealed directly on the record to the intermediate appellate court for final decision and shall not be subject to a contested case hearing. Sections 91-14(b) and (g) shall govern the appeal, notwithstanding the lack of a contested case hearing on the matter. 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.
(f) For the purposes of an appeal from a decision from a public hearing, 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 members of the agency 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) The written recommendation received by the agency from the mediator with any mediation agreement on any issue;
(6) A statement of relevant matters noticed by the agency members at the public hearings;
(7) The written decision of the agency issued in connection with the application and public hearings; and
(8) Other documents required by the board or county authority."
SECTION 4. Section 205-2, Hawaii Revised Statutes, is amended by amending subsections (b), (c), and (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 resource permit may be required for geothermal resource development
activities in accordance with section 205-A.
(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 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 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 resource permit may
be required for geothermal resource development activities in accordance with
section 205-A.
(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; [and]
provided that a geothermal resource permit may be required for geothermal
resource development activities in accordance with section 205-A; 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 5. 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 biofuels 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 resource permit may be required for geothermal
resource development activities in accordance with section 205-A."
SECTION 6. 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 resource permit may be required for geothermal
resource development activities in accordance with section 205-A.
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."
PART IV
SECTION 7. In codifying and referencing the new section added by section 3 of this Act, the revisor of statutes shall substitute an appropriate section number for the letter used in designating the new section in this Act.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
County of Hawaii Package; Geothermal Resources; Exploration; Development
Description:
Authorizes BLNR to issue exploration permits for geothermal resources and minerals on reserved lands. Authorizes BLNR to issue conservation district geothermal resource development permits. Authorizes counties to issue agricultural, rural, and urban district geothermal resource development permits.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
