Report Title:

Wind Energy; Undersea Cable

 

Description:

Establishes a coordinated process for the approval of permits for an interisland wind energy and undersea cable project.  (HB2862 HD2)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

2862

TWENTY-FOURTH LEGISLATURE, 2007

H.D. 2

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO WIND ENERGY.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Renewable energy resources offer Hawaii important economic, environmental, and energy security benefits, especially since Hawaii's dependency on petroleum is the highest in the nation, accounting for approximately 90 per cent of the state's energy needs.  Petroleum dependency makes Hawaii consumers extremely vulnerable to any oil embargo, supply disruption, international market dysfunction, and many other factors beyond Hawaii's control.

     Recognizing the importance and economic and environmental benefits of increasing energy self-sufficiency, the legislature and the department of business, economic development, and tourism have, over the past four years, committed to energy objectives that would achieve dependable, efficient, and economical statewide energy systems, increased self-sufficiency, greater energy security, and reduction of greenhouse gas emissions.

     Act 272, Session Laws of Hawaii 2001, recognized the economic, environmental, and fuel diversity benefits of renewable energy resources and the need to encourage the establishment of a market for renewable energy in Hawaii using the state's renewable energy resources.  Act 240, Session Laws of Hawaii 2006, provided a framework for energy self-sufficiency.  The State has also committed to a renewable energy standard, where 20 per cent of electricity sold will be generated from renewable resources by the end of 2020 and has sought to encourage private sector development of renewable energy projects.

     However, renewable energy projects are often complex, large-scale undertakings requiring a number of permits.  The process for obtaining the necessary permits for renewable energy projects and developments and the process for meeting state, county, and federal regulations has for decades been described as overly time-consuming, cumbersome, onerous, and costly.  In fact, the "Hawaii Integrated Energy Policy Report" of 1991 found that the permit and approval process required for the development and siting of energy facilities for a single project can take up to seven years to complete.  Thus, the inefficiency of the permitting and development process acts as a barrier to meeting Hawaii's renewable energy goals.

     Understanding that renewable energy projects can provide substantial and long-term benefits to the state and that development of renewable energy projects would further state policies of developing indigenous renewable energy resources and decreasing Hawaii's dependency on imported fossil fuels, the legislature finds that there is a need to streamline the permitting process to provide predictability and to encourage private companies to commit substantial amounts of capital, time, and effort necessary to develop such projects. 

     The purpose of this Act is to improve the permitting process required for the development of a wind energy project that would use an undersea cable to transmit electricity between islands.

     The department of business, economic development, and tourism shall be charged with the responsibility over the permitting process.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:


"CHAPTER

WIND ENERGY AND UNDERSEA CABLE SYSTEM DEVELOPMENT

     §   -1  Short title.  This chapter shall be known and may be cited as the Wind Energy and Undersea Cable System Development Permitting Act.

     §   -2  Definitions.  As used in this chapter, unless the context clearly requires otherwise:

     "Agency" means any department, office, board, or commission of the State or a county government, but does not include the state legislature.

     "Applicant" means any person who, pursuant to statute, ordinance, rule, or regulation, requests any approval or permit required for a proposed project.

     "Approval" means a discretionary consent required from an agency prior to the actual implementation of a project.

     "Department" means the department of business, economic development, and tourism.

     "Discretionary consent" means a consent, sanction, or recommendation from an agency for which judgment and free will may be exercised by the issuing agency, as distinguished from a ministerial consent.

     "Environmental impact statement" means, as applicable, an informational document prepared in compliance with chapter 343 or with the National Environmental Policy Act of 1969 (Public Law 91-190).

     "Interagency group" means the body established pursuant to section    -5.

     "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document or decision pertaining to any regulatory or management program that is related to the protection, conservation, use of, or interference with the natural resources of land, air, or water in the state and that is required prior to or in connection with the undertaking of the project.

     "Person" includes any individual, partnership, firm, association, trust, estate, corporation, joint venture, consortium, or other legal entity other than an agency.

     "Project" means the commercial development, construction, installation, financing, operation, maintenance, repair, and replacement, including without limitation all applicable exploratory, testing, and predevelopment activities related to the foregoing, of:

(1)  A wind energy facility, including all associated buildings, structures, other improvements, equipment, wells, and transmission lines, on any island in the State of Hawaii for the purpose of generating electric energy for transmission primarily to the island of Oahu through the cable system; and

     (2)  An interisland deep water electrical transmission cable system, including all land-based transmission lines and other ancillary facilities, to transmit wind generated electric energy from any neighbor island in the State of Hawaii to the island of Oahu, regardless of whether the cable system is used to deliver electric energy to any intervening point.

     §   -3  Project permit application and review process.  (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 project permit application and review process provided for in this chapter.

     (b)  The project permit application and review process shall incorporate:

     (1)  A list of all permits required for the project;

     (2)  The role and functions of the department as the lead agency and the interagency group;

     (3)  All permit review and approval deadlines;

     (4)  A schedule for meetings and actions of the interagency group;

     (5)  A mechanism to resolve any conflicts that may arise between or among the department and any other agencies, including any federal agencies, as a result of conflicting permit, approval, or other requirements, procedures, or agency perspectives;

     (6)  Any other administrative procedures related to the foregoing; and

     (7)  A project permit application form to be used for the project for all permitting purposes.

     (c)  The department shall perform all of the permitting functions for which it is currently responsible and shall coordinate the concurrent review of the listed permits in section    -9 by agencies with jurisdiction over the project.  This review process shall include to the fullest extent possible all federal agencies having jurisdiction over any aspect of the project.

(d)  All project permits identified in the project permit application and review process shall be processed and either denied or approved no later than twenty-four months after the date that the project permit application is filed and deemed accepted by the department.

     §   -4  Project permit application, review, and approval process; implementation.  (a)  The department shall serve as the lead agency for the project permit application and review process established pursuant to section    -3 and as set forth in this section for the project.  All relevant agencies with jurisdiction over the project shall be required to participate in the project permit application and review process.

     (b)  To the greatest extent possible, the department and each agency with jurisdiction over the project shall complete all of their respective permitting functions for the purposes of the project in accordance with the timetable for regulatory review set forth in the joint agreement described in subsection (c)(3) and within the time limits contained in the applicable permit statutes, ordinances, rules, or federal regulations; except that the department or any agency shall have good cause to extend, if and as permitted, the applicable time limit if the permit-issuing agency relies on another agency, including any federal agency, for all or part of the permit processing and the delay is caused by the other agency.

     (c)  The procedure shall be as follows:

     (1)  The applicant shall submit the project permit application using the project permit application form that shall include whatever data about the proposed project that the department deems necessary to fulfill the purposes of this chapter and to determine which other agencies may have jurisdiction over any aspect of the proposed project;

     (2)  Upon receipt of the project permit application, the department shall notify all agencies with jurisdiction over the project, as well as all federal agencies, that the department determines may have jurisdiction over any aspect of the proposed project as set forth in the application and shall invite the federal agencies so notified to participate in the project permit application process.  The agencies, and those federal agencies that accept the invitation, thereafter shall participate in the project permit application and review process;

     (3)  The representatives of the department and the state, county, and federal agencies and the applicant shall develop and sign a joint agreement among themselves that shall:

          (A)  Identify the members of the project permit application, review, and approval team;

          (B)  Identify all permits required for the project;

          (C)  Specify the regulatory and review responsibilities of the department and each state, county, and federal agency and set forth the responsibilities of the applicant;

          (D)  Establish a timetable for regulatory review, the conduct of necessary hearings, the preparation of any necessary environmental assessment or environmental impact statement, and other actions required to minimize duplication and to coordinate and consolidate the activities of the applicant, the department, and the state, county, and federal agencies; and

          (E)  Provide that a hearing required for a particular permit shall be held on the islands where the proposed activity shall occur.  To the extent practicable, the department shall consolidate any hearings required for all permits that shall be required for the application;

     (4)  A project permit application, review, and approval team shall be established and shall consist of the members of the interagency group established pursuant to section    -5.  The applicant shall designate its representative to be available to the review team, as it may require, for purposes of processing the applicant's consolidated permit application;

     (5)  The project permit application, review, and approval process shall not affect or invalidate the jurisdiction or authority of any agency under existing law;

     (6)  The applicant shall apply directly to each federal agency that does not participate in the project permit application, review, and approval process;

     (7)  The department shall review for completeness and thereafter shall process the project permit application submitted by an applicant for the project and shall monitor the processing of any permit applications by agencies with jurisdiction over the project.  The department shall coordinate and seek to consolidate where possible the permitting functions and shall monitor and assist in the permitting functions conducted by all agencies with jurisdiction over the project and, to the fullest extent possible, the federal agencies in accordance with the project permit application, review, and approval process; and

     (8)  Once the processing of the project permit application has been completed and all permits required for the project have been issued to the applicant, the department shall monitor the applicant's work undertaken pursuant to the permits to ensure the applicant's compliance with the terms and conditions of the permits.

     (d)  Where the contested case provisions under chapter 91 apply to any one or more of the permits to be issued by the department or any agency for the purposes of the project, the department or agency, if there is a contested case involving any of the permits, may be required to conduct only one contested case hearing on the permit or permits within its jurisdiction.  Any appeal from a decision made by the department or agency pursuant to a public hearing or hearings required in connection with a permit shall be made directly on the record to the intermediate court of appeals, subject to chapter 602.

     §   -5  Interagency group.  (a)  The department shall establish an interagency group comprised of those agencies with jurisdiction over the project.  Each of these agencies shall designate an appropriate representative to serve on the interagency group as part of the representative's official responsibilities.  The interagency group shall perform liaison and assistance functions as required by this chapter and the department.  The department shall invite and encourage the appropriate federal agencies having jurisdiction over any aspect of the project to participate in the interagency group.

     (b)  The department and agencies shall cooperate with the federal agencies to the fullest extent possible to minimize duplication between and, where possible, promote consolidation of federal and state requirements.  To the fullest extent possible, this cooperation shall include among other things joint environmental impact statements with concurrent public review and processing at both levels of government.  Where federal law has requirements that are in addition to but not in conflict with state law requirements, the department and the agencies shall cooperate to the fullest extent possible in fulfilling their requirements so that all documents comply with all applicable laws.

     §   -6  Streamlining activities.  In administering the project permit application, review, and approval process, the department shall:

     (1)  Monitor all permit applications submitted under this chapter and the processing thereof on an ongoing basis to determine the source of any inefficiencies, delays, and duplications encountered and the status of all permits in process;

     (2)  Adopt and implement needed streamlining measures identified by the interagency group, in consultation with members of the public:

     (3)  Design, in addition to the project permit application form, other applications, checklists, and forms essential to the implementation of the project review and approval process;

     (4)  Recommend to the legislature, as appropriate, suggested changes to existing laws to eliminate any duplicative or redundant permit procedures or requirements;

     (5)  Coordinate with agencies to ensure that all standards used in any agency decision-making for any required permits are clear, explicit, and precise; and

     (6)  Incorporate, where possible, rebuttable presumptions based upon requirements met for permits issued previously under the consolidated permit application, review, and approval process.

     §   -7  Information services.  The department shall:

     (1)  Operate a permit information and coordination center during normal working hours, which shall provide guidance with regard to the permits and procedures that may apply to the project; and

     (2)  Maintain and update a repository of the laws, rules, procedures, permit requirements, and criteria of agencies whose permitting functions are not transferred by section    -9 to the department for the purposes of the project and that have control or regulatory power over any aspect of the project and of federal agencies having jurisdiction over any aspect of the project.

     §   -8  Construction of the chapter; rules.  This chapter shall be construed liberally to effectuate its purposes, and the department shall have all powers that may be necessary to carry out the purposes of this chapter, including the authority to make, amend, and repeal rules to implement this chapter; provided that all procedures for public information and review under chapter 91 shall be preserved; and provided further that the consolidated permit application, review, and approval process, except as provided in this chapter, shall not affect or invalidate the jurisdiction or authority of any agency under existing law.  The adoption, amendment, and repeal of all rules shall be subject to chapter 91.

     §   -9  Applicable permits to be included in the project permit application process.  (a)  The project permit application process shall include but not be limited to the following permits:

     (1)  From the land use commission:  Any district boundary amendment involving land areas greater than fifteen acres (section 205-4);

     (2)  From the department of business, economic development, and tourism:  federal consistency review required for activity within the coastal zone (section 205A-3);

     (3)  From the department of health:

          (A)  Water quality certification for discharge into navigable waters (part III of chapter 342D); and

          (B)  Storm water discharge permit (part III of chapter 342D);

     (4)  From the department of land and natural resources:

          (A)  Conservation district use permit (section 183C‑6);

          (B)  Ocean dredging, filling, or construction permit (section 183C-6);

          (C)  Ocean lease, right-of-entry, or revocable permit for activity on state-owned lands, including submerged lands and sub-surface marine waters (section 190D-21);

          (D)  Incidental taking of a threatened or endangered species license (section 195D-4);

          (E)  Stream channel alteration permit (section 174C-71);

          (F)  Well construction and pump installation permit (section 174C-84);

          (G)  Historic property, aviation artifact, or burial site review (section 6E-42);

          H)   Burial sites and human remains discovery (section 6E-43.6);

          (I)  Historic site review (section 6E-8);

     (5)  From the public utilities commission:

          (A)  Power purchase agreement (section 269-27.2); and

          (B)  High voltage transmission line development (chapter 269);

     (6)  From the county of Maui:

          (A)  Community plan and zoning requirements (       );

          (B)  Special use permit (          );

          (C)  Special management area use permit (          );

          (D)  Shoreline setback variance (          );

          (E)  Planned development approval (          ); and

          (F)  Subdivision, grubbing, grading, and building permits (          );

          and

     (7)  From the city and county of Honolulu:

          (A)  Development plan and zoning requirements (     ); and

          (B)                (          ).

     (b)  Nothing in this section shall be construed to relieve an applicant from the laws, ordinances, and rules of any agency whose functions are not transferred by this section to the department for the purposes of the project.

     (c)  Except as provided in subsection (a)(5), this section shall not apply to any permit issued by the public utilities commission under chapter 269.

     §   -10  Annual report.  No later than twenty days prior to the convening of each regular session, the department shall submit an annual report to the governor and legislature on its work during the preceding year, the development status of the project, any problems encountered, and any legislative actions that may be needed further to improve the consolidated permit application, review, and approval process and implement the intent of this chapter.

     §   -11  Severability.  If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared severable.

     §   -12  Exemptions from certain state laws.  To promote the purposes of this chapter, all persons hired by the department to effectuate this chapter are exempted from chapters 76 and 89."

     SECTION 3.  There is appropriated out of the general revenues of the State of Hawaii the sum of $      so much thereof as may be necessary for fiscal year 2008-2009 for the establishment of the project permit application, review, and approval process for wind energy and undersea cable system development.

     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 2008-2009 for the establishment of one full-time equivalent (1.00 FTE) permanent renewable energy facilitator position in the department of business, economic development, and tourism to facilitate the efficient permitting of renewable energy projects through the project permit and review process and to initiate the implementation of key renewable energy projects permitting efficiency improvement strategies identified by the department of business, economic development, and tourism.

     The sums appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this Act.

     SECTION 4.  This Act shall take effect on July 1, 2025.