HOUSE OF REPRESENTATIVES

H.B. NO.

1235

TWENTY-SEVENTH LEGISLATURE, 2013

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to geothermal resources.

 

 

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

 


     SECTION 1.  Chapter 205, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§205-A  Geothermal resources exploration.  (a)  The use of an area for non-invasive geothermal resources exploration shall be permitted on reserved lands and within any land use district.

     (b)  The use of an area for invasive geothermal resources exploration shall be governed by the board within the conservation district and, except as herein provided, by state and county statutes, ordinances, and rules not inconsistent herewith on reserved lands and within agricultural, rural, and urban districts.

     In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothermal resources exploration in an agricultural, rural, or urban district, the appropriate county authority may issue permits for invasive activities to support geothermal resources exploration.

     If the requested invasive geothermal resources exploration has triggered an environmental assessment under chapter 343, the environmental assessment shall be completed before application for the necessary county permits.  The environmental assessment process shall satisfy all public hearings requirements for these permits.  No other public hearing shall be required by the county to process the applicable permits.

     (c)  If invasive geothermal resources exploration is proposed within a conservation district and has triggered an environmental assessment, the environmental assessment shall be completed before the application is submitted to the board of land and natural resources.  The environmental assessment process shall satisfy all public hearings requirements for these permits.  No other public hearing shall be required by the board.  The board shall determine whether, pursuant to board rules, a conservation district use permit shall be granted to authorize the geothermal resource exploration described in the application.  The board shall grant a conservation district use permit if it finds that the applicant has demonstrated that:

     (1)  The desired uses would not:

         (A)  Have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; or

         (B)  Unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection; or

     (2)  There are reasonable measures available to mitigate any unreasonable adverse effects or burdens that may result if a permit is granted.

     A decision shall be made by the board within three months of the date a complete application was filed; provided that the time limit may be extended by agreement between the applicant and the board.

     §205-B  Geothermal resources development.  (a)  The use of an area for geothermal resources development shall be governed by the board within the conservation district and, except as herein provided, by state and county statutes, ordinances, and rules not inconsistent herewith within agricultural, rural, and urban districts.

     In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothermal resources development in an agricultural, rural, or urban district, the appropriate county authority may issue a geothermal resource permit to allow geothermal resources development.  "Appropriate county authority" means the county planning commission unless some other agency or body is designated by ordinance of the county council.  The uses permitted by county general plan and zoning ordinances and by the appropriate county authority shall be deemed to be reasonable and to promote the effectiveness and objectives of this chapter.  Chapters 182, 183, 183C, 205A, 226, and 343 shall apply as appropriate.

     If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal resources development in an agricultural, rural, or urban district, the provisions shall require the appropriate county authority to conduct a public hearing on any application for a geothermal resource permit to determine whether the use is in conformity with the criteria specified in subsection (c) for granting geothermal resource permits; provided that within the urban, rural, and agricultural land use districts, direct use applications of geothermal resources are permitted without any application for a geothermal resource permit if the direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter.

     (b)  If geothermal resources development is proposed within a conservation district, with an application with all required data, the board of land and natural resources shall conduct a public hearing.  Upon appropriate request for mediation from any party who submitted 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 shall submit a written recommendation to the board, based upon any mediation agreement reached between the parties for consideration by the board in its final decision.

     If there is no mediation agreement, the board may conduct a second public hearing to receive additional comment related to the mediation issues.  Within ten days after the second public hearing, the board may receive additional written comment 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 thereafter determine whether, pursuant to board rules, a conservation district use permit shall be granted to authorize the geothermal resources development described in the application.  The board shall grant a conservation district use permit if it finds that the applicant has demonstrated that:

     (1)  The desired uses would not:

         (A)  Have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; or

         (B)  Unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, and police and fire protection; or

     (2)  There are reasonable measures available to mitigate any unreasonable adverse effects or burdens that may result if a permit is granted.

     A decision shall be made by the board 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 board.

     (c)  If geothermal resources development is proposed within agricultural, rural, or urban districts and the proposed development is not a permitted use 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 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 the parties for consideration by the county authority in its final decision.

     If there is no mediation agreement, 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 thereafter determine whether a geothermal resource permit shall be granted to authorize the geothermal resources development 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:

         (A)  Have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; and

         (B)  Unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; or

     (2)  If unreasonable adverse effects or burdens referred to in paragraph (1) may result if a permit is granted, there are reasonable measures available to mitigate the unreasonable adverse effects or burdens.

     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.

     (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 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.  Section 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;

     (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 2.  Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  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 subject to sections 205-A and 205-B; 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 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 3.  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[.], and subject to sections 205-A and 205-B."

     SECTION 4.  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[.], and subject to sections 205-A and 205-B.

     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 5.  In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on July 1, 2013.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Geothermal Resources; Exploration; Development

 

Description:

Requires that the use of an area for invasive geothermal resources exploration or geothermal resources development shall be governed by BLNR within the conservation district and by state and county statutes, ordinances, and rules within agricultural, rural, and urban districts.  Authorizes appropriate county authorities to issue geothermal resource permits.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.