HOUSE OF REPRESENTATIVES

H.B. NO.

1584

TWENTY-SEVENTH LEGISLATURE, 2014

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to renewable energy.

 

 

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

 


     SECTION 1.  In 2009, the legislature adopted senate concurrent resolution no. 132, S.D. 1, which established the construction industry task force (task force) to determine the economic value of the construction industry in Hawaii.  As directed in the concurrent resolution, the task force was charged with developing a series of recommendations to stimulate the construction industry and create new jobs in the local construction industry.  Unfortunately, to date, many of the task force's recommendations have yet to be enacted by the legislature.  The intent of this Act is to enact and implement one of the recommendations of the task force in an effort to support the local construction industry.

     The legislature recognizes the vital importance of increasing Hawaii's energy self-sufficiency.  Hawaii's over-dependency on imported fossil fuels threatens the health, safety, and welfare of the people of Hawaii and our economic and environmental security and future.  Hawaii's over-dependency on imported fossil fuels leaves Hawaii residents extremely vulnerable to events and factors that are not within the control of this State or our residents, such as oil embargos, supply disruption, international market dysfunction, and resulting cost increases.  Fossil fuel dependency and vulnerability relinquish Hawaii's control over the future of this State's energy consumption and costs which pose immediate and long-term threats to the health, safety, and welfare of Hawaii's residents.

     The critical need to immediately develop renewable energy projects to develop and utilize Hawaii's bountiful indigenous sources of renewable energy and reduce our over-dependency on imported fossil fuels requires the legislature to address duplicative and time consuming processes in order to encourage expeditious development of feasible renewable energy projects.

     The legislature recognizes that private sector development of large scale projects must be encouraged and is necessary to meet the state mandate and goals for renewable energy.  These renewable energy projects are often complex, large-scale undertakings requiring substantial investment and a substantial 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 rules and regulations has for decades been described as overly time-consuming, cumbersome, onerous, and costly.  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 substantial barrier and impediment to meeting Hawaii's vital renewable energy needs and mandates by creating significant delays and adding costs, deterring investment and impacting the feasibility of the development and implementation of renewable energy projects.

     Therefore, the legislature finds that there is a compelling state interest in encouraging and stimulating the immediate development of renewable energy projects to utilize Hawaii's indigenous renewable energy resources for the health, safety, and welfare of the residents of Hawaii, and that to achieve this compelling state interest, it is necessary to establish an expedited and streamlined permitting process that creates a regulatory framework that is predictable, and in turn, encourages private investment in renewable energy projects and makes feasible the expeditious development of renewable energy projects in Hawaii by private companies.

     The purpose of this Act is to:

     (1)  Establish an expedited renewable energy facility siting process for state and county permits necessary for the siting, development, construction, and operation of a renewable energy facility;

     (2)  Direct the state energy resources coordinator to implement and further the state policies and compelling state interest in developing indigenous renewable energy resources, except geothermal resources, and decreasing Hawaii's dependency on imported fossil fuels in furtherance of energy self-sufficiency, energy security, and reduction of greenhouse gas emissions through coordination, concurrent approval processes, elimination of redundancy in the permitting process, clear and fair deadlines, and other efficiencies in processes and procedures established pursuant to the authority given to the state energy resources coordinator in this Act; and

     (3)  Give to the state energy resources coordinator the necessary power and authority to implement and further state renewable energy policies and compelling interest in expediting the development of renewable energy facilities, while ensuring, and not circumventing, opportunity for public review and comment,  preserving the environment and mitigating potential environmental and other impacts from renewable energy projects, and protecting the public's health, safety, and welfare consistent with the goals, purposes, and policies of this Act.

     SECTION 2.  Chapter 201N, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part     .  RENEWABLE ENERGY FACILITY SITING PROCESS

     §201N-A  Definitions.  For the purpose of this part:

     "Applicant" means any person or entity who submits an application to the energy resources coordinator for a permit or approval for a renewable energy facility.

     "County agency" means a department, division, office, officer, agency, or other organization of a county government, including a county council.

     "County law" means a county charter provision, ordinance, or administrative rule.

     "County permit" means a permit that is subject to approval by a county agency pursuant to federal, state, or county law.

     "Delegated environmental permit" means an air or water quality permit subject to issuance by the department of health under authority delegated by the United States Environmental Protection Agency.

     "Energy resources coordinator" or "coordinator" means the energy resources coordinator as designated in section 196-3.

     "Permit":

     (1)  Means any approval, no matter the nomenclature, necessary for the siting, development, construction, or operation of a renewable energy facility; except that the term shall not include:

         (A)  Acceptance by an accepting authority of an environmental impact statement on a facility;

         (B)  Issuance by a county agency of a building or grading permit; or

         (C)  Approval by the public utilities commission of a power purchase agreement between a renewable energy facility owner and a public utility; and

     (2)  Includes:

         (A)  A state land use reclassification;

         (B)  A county development, community, or community development plan amendment;

         (C)  A county zoning map amendment;

         (D)  A state conservation district use permit;

         (E)  A state special permit for an agricultural or rural district;

         (F)  A special management area permit;

         (G)  A shoreline setback variance;

         (H)  A grant of an easement on state or county real property; and

         (I)  Any other state or county permit or approval applicable and necessary for the siting, development, construction, or operation of a renewable energy facility, except as set forth in paragraph (1) of this definition.

     "Power purchase agreement" means an agreement between a renewable energy facility owner and a public utility on the sale of electricity produced by the facility to the public utility.

     "Renewable energy" has the same meaning as in section 269-91, excluding energy generated or produced using geothermal sources.

     "Renewable energy facility" or "facility" means a facility located in the State that is planned to have the capacity to produce from renewable energy at least two hundred megawatts of electricity.  The term includes any of the following associated with the facility:

     (1)  The land parcel on which the facility is situated;

     (2)  Any renewable energy production structure or equipment;

     (3)  Any energy transmission line from the facility to a public utility's electricity distribution system;

     (4)  Any on-site infrastructure; and

     (5)  Any on-site building, structure, other improvement, or equipment necessary for the production of electricity or biofuel from the renewable energy site, transmission of the electricity or biofuel, or any accommodation for employees of the facility.

     "State agency" means a department, division, office, officer, agency, or other organization of the state government, but not the legislature.

     "State law" means a state constitutional provision, statute, or administrative rule.

     "State permit" means a permit that is subject to the approval of a state agency pursuant to federal or state law; except that the term does not include a delegated environmental permit.

     §201N-B  Staff and contractor; energy resources coordinator; renewable energy facility siting process.  The energy resources coordinator may employ and dismiss staff without regard to chapters 76 and 89 to assist the coordinator in the implementation of this part.  The salary of each staff member shall be set by the coordinator.  Each staff member shall be entitled to participate in any public employee benefit program plan or privilege.

     The coordinator may also contract persons to assist the coordinator in the implementation of this part.  The coordinator's power to charge an applicant for reimbursement of staff costs and expenses shall be subject to the guidelines and limitations set forth in section 201N‑D.

     §201N-C  General duties of the coordinator.  The coordinator shall:

     (1)  Implement and further state policies and the compelling state interest in developing indigenous renewable energy resources and decreasing Hawaii's dependency on imported fossil fuels in furtherance of energy self-sufficiency, energy security, and reduction of greenhouse gas emissions through coordination, concurrent approval processes, elimination of redundancy in the permitting process, clear and fair deadlines, and other efficiencies in processes and procedures established pursuant to the authority given to the coordinator in this part;

     (2)  Have the power and authority, which shall be liberally construed, necessary to implement and further the state renewable energy policies, mandate, and compelling interest in expediting the development of renewable energy facilities, while ensuring, and not circumventing, opportunity for public review and comment, mitigating potential environmental and other impacts from renewable energy projects, and protecting the public's health, safety, and welfare;

     (3)  Have the power and authority, as provided under this part, to receive, accept, review, coordinate, and approve all applications for permits necessary for the development of a renewable energy facility on an expedited basis;

     (4)  Coordinate and process permits concurrently and shall take not longer than six months following receipt of a completed consolidated application to complete the review and approval of the application and all permits relating thereto, subject only to final acceptance of an environmental assessment or environmental impact statement, or both, as may be required under chapter 343;

     (5)  Receive and accept a consolidated application, in a form as the coordinator shall prescribe as required under section 201N‑Q, for the approval of the siting, development, construction, and operation of a renewable energy facility.  Within ten days following receipt of an application or an amendment or supplement thereto, the coordinator shall give written notice to the applicant as to the coordinator's acceptance of the application, amendment, or supplement, or as to any deficiencies relating thereto;

     (6)  Identify all state and county permits applicable and necessary for approval of the renewable energy facility;

     (7)  Gather from the applicant any information the coordinator finds relevant and necessary to review, process, and make a decision on the permit application; and

     (8)  Work with other federal, state, and county agencies and the applicant to determine the terms and conditions of the permits that are necessary to effectuate this part while still protecting the public health, safety, and welfare to the extent practicable without unduly delaying, impairing, or frustrating the purposes, policies, and goals of this part.

     §201N-D  Consolidated application; fee; pre-application conference; public notice of receipt of application.  (a)  The coordinator shall establish a consolidated application in accordance with section 201N‑Q and require the applicant to pay a fee with the consolidated application.  The coordinator shall establish the staffing for the consolidated application and set the fee at an amount mutually agreed upon by the applicant and the coordinator, but sufficient to cover not more than the reasonable, actual, and direct costs and expenses of the coordinator, coordinator's staff, and contractor, and relevant state and county agencies to provide input and advice on the state and county permits applicable and necessary for and directly related to the applicant's facility.  Upon receipt of the fee or periodically thereafter, the coordinator shall transmit to each relevant state or county agency the portion of the fee that reflects the cost to that state or county agency for providing its input, review, and advice.

     (b)  Subject to the ten-day deadline set forth in section 201N-C(5), before accepting a consolidated application, the coordinator may hold a pre-application conference with the prospective applicant to discuss all the state and county permits necessary for the facility and notify the prospective applicant of the information that must be submitted with the consolidated application.

     (c)  Within ten days of receipt of a consolidated application, the coordinator shall publish a public notice of receipt of the application in a statewide publication.  The public notice shall include:

     (1)  The name of the applicant;

     (2)  The location of the proposed renewable energy facility;

     (3)  A summarized description of the facility;

     (4)  The state and county permits required for the facility; and

     (5)  Any other information deemed necessary or appropriate by the coordinator and relevant to the proposed facility.

     §201N-E  Approval of state permits.  (a)  When the coordinator receives an application for a renewable energy facility that requires state permits, then concurrently with the determinations and processes of the coordinator under section 201N‑F(a) and the other sections of this part and within the sixty days following receipt of a completed consolidated application, the coordinator, after consultation with relevant federal, state, and county agencies, shall determine the terms and conditions to be imposed on the state permits that are necessary to protect the public health, safety, and welfare to the extent practicable without unduly delaying, impairing, or frustrating the purposes, policies, and goals of this part.  The terms and conditions may require the applicant to improve off-site infrastructure or establish measures to mitigate significant adverse environmental effects, but only to the extent directly caused by the applicant's renewable energy facility.

     The coordinator shall make the determination for all terms and conditions of all required state permits no later than sixty days after receipt of a completed consolidated application; provided that, if an approval for a federal permit or delegated environmental permit or acceptance of an environmental assessment or environmental impact statement is a prerequisite to the approval of a state permit required for the facility, then the coordinator's determination shall be made but shall be conditioned upon approval of the federal permit or delegated environmental permit, or acceptance of the environmental assessment or environmental impact statement, or both, as applicable.

     (b)  Immediately upon determining the necessary terms and conditions under subsection (a), the coordinator, on behalf of the relevant state agencies, shall approve the state permits with those terms and conditions.  The approval shall take effect on the sixty-first day after the coordinator's acceptance of a completed consolidated application; provided that if an approval for a federal permit or delegated environmental permit, or acceptance of an environmental assessment or environmental impact statement, is a prerequisite to the approval of a state permit required for the facility, the approval shall be conditioned upon and made effective one business day following the approval of the federal permit or delegated environmental permit, or acceptance of the environmental assessment or environmental impact statement, as applicable.  If a judicial proceeding has been timely initiated under section 343-7(c) regarding the acceptance of the statement, then the state permits shall be subject to the order entered with the final judicial decision on the dispute.  The coordinator may publish the coordinator's approval of all state permits in one consolidated document.

     If a statement of findings is required by state law as a condition for approval of a state permit, the coordinator shall issue the statement to accompany the permit.  For the purpose of this part, a statement of findings shall be deemed a condition of the state permit.

     (c)  Notwithstanding the approval of a state permit by the coordinator, the state agency on whose behalf the permit was approved shall be responsible for monitoring and enforcing the terms and conditions of the permit.

     §201N-F  Recommendation for approval of county permits; approval of county permits.  (a)  Within fifteen days following the coordinator's receipt of a completed application for a renewable energy facility that requires county permits, and concurrently with the determination of the coordinator under section 201N‑E(a) and the other sections of this chapter, the coordinator, after consultation with relevant federal, state, and county agencies, shall determine the terms and conditions to be imposed on the county permits that are necessary to protect the public health, safety, and welfare to the extent practicable without unduly delaying, impairing, or frustrating the purposes, policies, and goals of this part.  The terms and conditions may require the applicant to improve off-site infrastructure or establish measures to mitigate significant adverse environmental effects, but only to the extent directly caused by the applicant's renewable energy facility.

     The coordinator shall make the determination for all county permits at the same time the determination is made for state permits under section 201N‑E(a).

     (b)  Immediately upon determining the necessary terms and conditions under subsection (a), the coordinator shall recommend to the relevant county agencies that they approve the county permits with those terms and conditions.

     If a statement of findings is required by county law as a condition for approval of a particular county permit, the coordinator shall issue the statement to accompany the permit.  For the purpose of this part, a statement of findings shall be deemed a condition of the county permit.

     (c)  Within forty-five days of receipt of the recommendation from the coordinator, each relevant county agency may approve the county permit under its jurisdiction with the terms and conditions recommended by the coordinator or amended by the county agency.  The county agency may charge the applicant a reasonable fee for reviewing and acting on the permit, consistent with established county agency fees.

     (d)  If, within forty-five days of receipt of a recommendation from the coordinator, a county agency does not approve the county permit, either because of rejection or inaction, the permit with the terms and conditions recommended by the coordinator shall be deemed approved on the forty-sixth day without necessity of further action by the county agency or coordinator.

     (e)  If, within the forty-five-day period following receipt of a recommendation from the coordinator, the county agency approves the county permit, but with amendments to any of the terms and conditions recommended by the coordinator, the county agency shall notify the coordinator within three days of the approval.  If the notification is not provided to the coordinator within the three-day period, the county agency shall be deemed to have not approved the permit within the forty-five-day period, and the permit shall be deemed approved with the coordinator's recommended terms and conditions in accordance with subsection (d).

     The coordinator shall have ten days after receipt of the notification from the county agency to determine whether to accept or reject the amended terms and conditions of the county permit.  If the coordinator accepts all amended terms and conditions, the coordinator shall approve the county permit with the amended terms and conditions within the ten-day period.  If the coordinator rejects all or some of the amended terms and conditions, the coordinator shall approve the county permit with terms and conditions that exclude the rejected amendments within the ten-day period.  The coordinator shall issue the decision in writing within the ten-day period.  If the coordinator does not issue a written decision within the ten-day period, the coordinator shall be deemed to have rejected the county's amendments and the permit shall be deemed approved with the coordinator's recommended terms and conditions in accordance with subsection (d) on the eleventh day without necessity of further action by the county agency or coordinator.

     (f)  Notwithstanding the action by the coordinator on a county permit approved pursuant to this section, the relevant county agency shall be responsible for monitoring and enforcing the terms and conditions of the permit.

     §201N‑G  Coordination with federal permits, delegated environmental permits, and environmental impact review process.  (a)  Concurrently with the sixty-day period set forth in section 201N‑E(a), the coordinator shall establish and implement a system to coordinate the approval of required federal permits with state and county permits for a renewable energy facility.  The system shall include a process for coordinating the federal environmental impact statement process with the state environmental impact statement process, such that they run concurrently with each other and with the state and county permitting processes.

     (b)  The coordinator also shall establish and implement a system to coordinate and concurrently process the issuance of delegated environmental permits by the department of health with approval of state and county permits for a renewable energy facility.

     (c)  The coordinator may convene interagency working groups for the purpose of this section.

     §201N‑H  Public hearing by coordinator.  (a)  If a federal, state, or county law requires a state or county agency to hold a public hearing on a permit application before making a decision on the permit, the coordinator shall hold the public hearing in place of the state or county agency within the sixty-day period set forth in section 201N‑E(a).  To the extent practicable, the coordinator shall consolidate public hearings to cover all permit applications and required public hearings.

     (b)  Nothing in this section shall prevent a county agency from voluntarily holding a public hearing on a county permit after the coordinator submits to the county agency a recommendation on that permit pursuant to section 201N‑F.  If a county agency voluntarily holds a public hearing on a county permit, it shall do so within the forty-five-day period provided in section 201N‑F(c) for review and action on the permit.

     §201N-I  Land use, zoning, building, and construction status of renewable energy facility; state and county permits.  (a)  A renewable energy facility, and all necessary state and county permits that have been approved under this part, shall be deemed a permitted principal use on the land parcel upon which it is situated.  The land use commission, department of land and natural resources, and the applicable county shall revise any state land use district map and county zoning map appropriately to reflect this status.

     (b)  The final plans and specifications of the renewable energy facility, as set forth in the relevant state and county permits approved pursuant to this part, shall be deemed to constitute the zoning, building, and construction standards for the facility and the land parcel upon which it is situated.

     For the purpose of applicable state and county law:

     (1)  The facility shall be deemed a conforming use; and

     (2)  Any building or structure associated with or related to a facility shall be deemed a conforming building or structure that can be dedicated to the appropriate state or county agency.

     (c)  Nothing in this section shall be deemed to prohibit the amendment of the state land use classification, county zoning map, or other zoning, building, or construction standard with respect to facilities approved under this part.  Any amendment, if made, shall be accomplished in accordance with applicable state or county law; except that no amendment shall remove the conforming status conferred under subsection (b) with respect to any facility or any associated building or structure.

     §201N‑J  Environmental impact review process; applicability.  (a)  Chapter 343 shall apply to any renewable energy facility, a consolidated application for which shall be submitted to the coordinator under this part.

     (b)  Nothing in this part or chapter 343 shall prohibit the review and processing by the coordinator of applications for permits for a renewable energy facility concurrently with the preparation and processing by the applicant of an environmental impact statement for the facility.  To accomplish the concurrent review, the coordinator shall, at the applicant's request, consent to the receipt and review of portions of a draft of an environmental impact statement before its completion.

     §201N‑K  Power purchase agreement not a state permit under this chapter; coordination of efforts.  A power purchase agreement between a renewable energy facility owner and a public utility shall not be a permit subject to approval by the coordinator.  Any power purchase agreement shall be subject to the applicable provisions of chapter 269.  However, the coordinator shall establish and implement a system to coordinate and concurrently process the review and approval by the public utilities commission of any power purchase agreement for electricity generated by a renewable energy facility.  The coordinator may convene an interagency working group for the purpose of this section.

     §201N‑L  Building or grading permit required from county.  A grading or building permit issued by the applicable county shall be required to grade a site or construct a structure for a renewable energy facility.  The applicable county shall establish an expedited process for review and issuance of all required building or grading permits that shall not exceed ninety days; provided that the process allows the county to contract with a third party to conduct the review of the permit application and to require the applicant for the permit to pay the cost incurred for the third party review.

     §201N‑M  Judicial review of dispute regarding approved permit; inapplicability of contested case procedures.  (a)  Any person aggrieved by the approval of a state or county permit or term or condition of any approved permit may file an action for relief in the circuit court.  Notwithstanding any other provision of this part to the contrary, for the purposes of bringing judicial action under this subsection, the term "person aggrieved" shall include the applicant and any state or county agency, office, council, or other government entity that has decision making authority related to the approved permit.  Other parties, pursuant to court action, may be adjudged aggrieved.

     (b)  The inapplicability of the use of contested case procedures pursuant to chapter 91 in the approval of any state or county permit pursuant to this part shall not be grounds for any judicial appeal.

     §201N-N  Subdivision exemptions in existence on June 30, 2020.  (a)  Any lease or easement (together with any mortgages or other documents encumbering either) that received a subdivision exemption that is in existence on June 30, 2020, may continue to be effective and shall continue to enjoy the exemption from subdivision requirements granted under section 201N-O after that section is repealed on July 1, 2020; provided that the following restrictions are complied with:

     (1)  The terms of the lease or easement shall restrict the use of the leased land or easement area to the development and operation of a renewable energy project; provided that, to comply with section 205-4.6, agricultural uses and activities shall not be restricted by any private agreement on agricultural land; and

     (2)  The lease shall have an initial term of at least twenty years.

     (b)  Notwithstanding that the leased land or easement area is not a lot of record, the lease or easement that received the subdivision exemption may be further encumbered, or any existing encumbrance may be amended, extended, or canceled, by recordation of a document in the bureau or the land court, as applicable, and the encumbrance shall only affect and encumber the leased land or easement area.  Encumbrances shall be subject to applicable foreclosure laws, where applicable.

     (c)  The lease or easement may be transferred or assigned by recordation of a document in the bureau or the land court, as applicable; provided that the restrictions in subsection (a) are complied with and acknowledged by the transferee or assignee in any conveyance or assignment document.

     (d)  The term of the lease or easement may be extended, and the terms and conditions of the lease or easement may be amended or modified; provided that the restrictions in subsection (a) are complied with, and that any material change to the leased land or easement area shall be subject to subsection (e).

     (e)  Any material change after June 30, 2020, regarding the leased land or easement area shall be subject to subdivision requirements; provided that the county agency charged with administering subdivisions (for land within the agricultural state land use district) or the department of land and natural resources (for land within the conservation state land use district) shall deem all subdivision requirements from which the lease or easement was exempt pursuant to the original subdivision exemption to be met and the lease or easement shall continue to be exempt from the requirements.  The lease or easement shall only be subject to the additional subdivision requirements, if any, necessitated by the material change.

     (f)  For purposes of this section:

     "Bureau" means the bureau of conveyances of the State of Hawaii.

     "Land court" means the office of the assistant registrar of the land court of the State of Hawaii.

     "Material change" means any change affecting the location, size, boundaries, or configuration of the leased land or the easement area that would require state or county review and approval under the subdivision requirements.

     "Subdivision exemption" means the exemption to the subdivision requirements received pursuant to section 201N-O.

     "Subdivision requirements" means all state laws or county ordinances and permits setting forth standards or requirements for improvements and approvals applicable to the subdivision or consolidation of land, changes in legal boundaries, or the creation or consolidation of parcels, easements, or other interest in land.

     §201N-O  Exemption from subdivision requirements.  (a)  Notwithstanding any other law or ordinance to the contrary:

     (1)  Lands within the agricultural or conservation state land use district may be leased; and

     (2)  Easements may be created and granted over lands within the agricultural or conservation state land use district,

for the purpose of developing and financing a renewable energy project or accessing a renewable energy project that is a permitted use in the district, even if the leased land or easement area has not been subdivided as a separate subdivided lot or easement.  Leases and easements authorized by this section shall be valid leases and easements for all purposes, but the exemption from subdivision requirements authorized by this section shall be subject to the requirements and limitations set forth in subsection (d).

     (b)  Without limiting the generality of subsection (a), the following may be performed without complying with subdivision requirements:

     (1)  All or a portion of a legal lot may be leased as a site for a renewable energy project or access to the project;

     (2)  Easements or other possessory interests, whether exclusive or nonexclusive, may be granted to use all or a portion of the legal lot as a renewable energy project site or access to the project;

     (3)  Maps, leases, licenses, grants of easements, or other instruments providing for the right to use all or a portion of a legal lot as delineated on a map for a renewable energy project site or access to the project may be recorded; and

     (4)  Mortgages and other security interests may be granted with respect to any lease or easement created pursuant to this section, and the holders of such mortgages or other security interests may foreclose upon the lease or easement covered and otherwise enforce the terms of the mortgage and security documents, subject to compliance with applicable laws other than subdivision requirements.

     (c)  The land court, bureau of conveyances, and other governmental agencies shall accept for filing and recording all instruments and maps pertaining to leases, easements, mortgages, and other security documents authorized pursuant to this section.

     (d)  The exemption from subdivision requirements authorized by this section shall only apply to leases and easements that meet the following requirements and shall be subject to the following limitations:

     (1)  The lease or easement shall restrict the use of the leased land or easement area to the development and operation of a renewable energy project; provided that, to comply with section 205-4.6, agricultural uses and activities shall not be restricted by private agreement on agricultural land;

     (2)  The lease shall have an initial term of at least twenty years;

     (3)  With respect to leases and easements on lands within an agricultural state land use district, the exemption from subdivision requirements provided by this section shall be for:

         (A)  Solar energy facilities permitted under section 205-2(d)(6), on land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E;

         (B)  Wind energy facilities permitted under section 205-2(d)(4) and (8), including the appurtenances associated with the production and transmission of wind-generated energy; and

         (C)  Any renewable energy facilities approved by the land use commission or county planning commission under chapter 205;

     (4)  With respect to leases and easements on lands within a conservation state land use district, the exemption from subdivision requirements provided by this section shall be for:

         (A)  Wind energy facilities, including the appurtenances associated with the production and transmission of wind-generated energy; and

         (B)  Any renewable energy facilities permitted or approved by the board of land and natural resources under chapter 183C; and

     (5)  The county agency charged with administering subdivisions in the county in which the renewable energy project is to be situated or, if the land is in a conservation state land use district, the department of land and natural resources, shall approve the exemption from subdivision requirements within ninety days after the project's developer and the owner of the land on which the renewable energy project is to be situated have submitted the conceptual schematics or preliminary plans and specifications for the renewable energy project to the county agency or the department of land and natural resources, and have provided to such county agency or the department of land and natural resources, as applicable, a certification and agreement that all applicable and appropriate environmental reviews and permitting shall be completed prior to commencement of development of the renewable energy project.  If, on the ninety-first day, an exemption has not been approved, it shall be deemed disapproved by the county agency or the department of land and natural resources, whichever is applicable.

     (e)  Nothing in this section shall:

     (1)  Exempt the actual development, construction, or operation of any use, project, or improvement from any applicable state or county laws, ordinances, restrictions, permits, or approvals, including restrictions on allowable uses or conditions and requirements for adequate infrastructure or mitigation measures;

     (2)  Exempt renewable energy projects from any permit or approval process under chapter 183C, 205, 205A, or 343;

     (3)  Exempt from subdivision requirements the conveyance of any fee interest in land; or

     (4)  Prevent any agency or authority that issues permits or approvals for renewable energy projects from imposing reasonable and appropriate restrictions on the type of siting, development, construction, and operation of a renewable energy project to protect agricultural resources and activities, the environment, natural resources, cultural resources and activities, or the health, safety, and welfare of the State.

     (f)  All agencies and authorities that issue permits or approvals for renewable energy projects may adopt rules or procedures to:

     (1)  Determine the type of renewable energy project that may be allowed within an agricultural or conservation district;

     (2)  Determine criteria for the appropriate siting of the renewable energy project within an agricultural or conservation district; and

     (3)  Identify mitigation measures applicable to renewable energy projects to protect agricultural resources and activities, the environment, natural resources, cultural resources and activities, health, safety, and welfare of the State.

     (g)  This section is not intended to diminish the discretion of any agency or any authority to approve or disapprove any permit application.

     (h)  This section shall be repealed on July 1, 2020.

     §201N‑P  Inapplicability of maximum time period rule requirement.  Section 91-13.5 shall not apply to the coordinator.  The deadlines for review and action upon a consolidated application for a renewable energy facility shall be subject to this part.

     §201N‑Q  Rules.  (a)  No later than August 1, 2014, the coordinator shall, after consultation with prospective applicants and related governmental agencies as the coordinator deems necessary or advisable:

     (1)  Adopt a consolidated application form that is consistent with the streamlining and concurrent agency approval processing goals of this part; and

     (2)  Adopt interim rules to implement this part without regard to the notice and public hearing requirements of section 91-3 or the small business impact review requirements of chapter 201M.

     (b)  Any amendment of the interim rules shall be subject to all provisions of chapters 91 and 201M.

     §201N‑R  Superiority of chapter over conflicting state or county law.  The provisions of this part shall supersede any conflicting state or county law."

     SECTION 3.  Section 91-1, Hawaii Revised Statutes, is amended to read as follows:

     "§91-1  Definitions.  For the purpose of this chapter:

     [(1)] "Agency" means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.

     "Agency hearing" refers only to a hearing held by an agency immediately prior to a judicial review of a contested case as provided in section 91-14.

     "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.  The term does not apply to the review, processing, or approval of state or county permits for any renewable energy facility under chapter 201N.

    [(2)  "Persons" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies.

     (3)] "Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any court or agency proceeding.

     "Persons" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies.

     [(4)] "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.  The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.

    [(5)  "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.

     (6)  "Agency hearing" refers only to such hearing held by an agency immediately prior to a judicial review of a contested case as provided in section 91-14.]"

     SECTION 4.  Section 269-27.2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  The rate payable by the public utility to the producer for the nonfossil fuel generated electricity supplied to the public utility shall be as agreed between the public utility and the supplier and as approved by the public utilities commission; provided that in the event the public utility and the supplier fail to reach an agreement for a rate, the rate shall be as prescribed by the public utilities commission according to the powers and procedures provided in this chapter.

     The commission's determination of the just and reasonable rate shall be accomplished by establishing a methodology that removes or significantly reduces any linkage between the price of fossil fuels and the rate for the nonfossil fuel generated electricity to potentially enable utility customers to share in the benefits of fuel cost savings resulting from the use of nonfossil fuel generated electricity.  As the commission deems appropriate, the just and reasonable rate for nonfossil fuel generated electricity supplied to the public utility by the producer may include mechanisms for reasonable and appropriate incremental adjustments, such as adjustments linked to consumer price indices for inflation or other acceptable adjustment mechanisms.

     When an application is submitted to the commission for the approval of a power purchase agreement or rate agreement for nonfossil fuel generated electricity between a renewable energy facility owner and a public utility under chapter 201N, the commission shall approve, approve with modification, or reject the application within sixty days of receipt.  The commission's approval or approval with modification shall not be unreasonably withheld or delayed.  If the commission does not approve, approve with modification, or reject the proposed power purchase agreement or rate agreement within the sixty-day period, then the power purchase agreement and rate agreement as submitted shall be deemed approved on the first day following the sixty-day period.

     When a renewable energy facility owner and a public utility fail to reach an agreement on a power purchase agreement or rate payable for nonfossil fuel generated electricity, either party may request the commission to prescribe a just and reasonable rate or other agreement terms.  The commission shall prescribe the rate or terms, or both, within sixty days of receipt of the request.  If the commission does not prescribe the rate or terms, or both, within the sixty-day period, then the rate or terms last proposed by the renewable energy facility owner shall be deemed the rate or terms prescribed.  That rate or those terms, as applicable, shall be effective two days after the sixty-day period.

     For the purpose of this subsection:

     (1)  The sixty-day period for commission determinations shall be subject to extension by the commission for reasonable cause and for a reasonable time as necessary, but in no event later than the six-month deadline for processing of permits by the energy resources coordinator referred to in section 201N‑C; and

     (2)  "Renewable energy facility owner" means the owner or authorized agent of the owner of a renewable energy facility as defined in section 201N‑A."

     SECTION 5.  Section 343-2, Hawaii Revised Statutes, is amended by amending the definition of "renewable energy facility" to read as follows:

     ""Renewable energy facility" has the same meaning as [defined] in section [201N-1.] 201N-A."

     SECTION 6.  Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

     "(e)  Whenever an applicant proposes an action specified by subsection (a) that requires approval of an agency and that is not a specific type of action declared exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall require the applicant to prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required; provided that if the agency determines, through its judgment and experience, that an environmental impact statement is likely to be required, the agency may authorize the applicant to choose not to prepare an environmental assessment and instead prepare an environmental impact statement that begins with the preparation of an environmental impact statement preparation notice as provided by rules.  For an action that proposes the establishment of a renewable energy facility, at the renewable energy facility applicant's written request, a draft environmental impact statement shall be prepared at the earliest practicable time[.] without the need to first prepare an environmental assessment.  The final approving agency for the request for approval is not required to be the accepting authority.

     For environmental assessments for which a finding of no significant impact is anticipated:

     (1)  A draft environmental assessment shall be made available for public review and comment for a period of thirty days;

     (2)  The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3; and

     (3)  The applicant shall respond in writing to comments received during the review and the applicant shall prepare a final environmental assessment to determine whether an environmental impact statement shall be required.  A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment.  The agency shall file notice of the agency's determination with the office, which, in turn, shall publish the agency's determination for the public's information pursuant to section 343-3.

     The draft and final statements, if required, shall be prepared by the applicant, who shall file these statements with the office.

     The draft statement shall be made available for public review and comment through the office for a period of forty-five days.  The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3.

     The applicant shall respond in writing to comments received during the review and prepare a final statement.  The office, when requested by the applicant or agency, may make a recommendation as to the acceptability of the final statement.

     The authority to accept a final statement shall rest with the agency initially receiving and agreeing to process the request for approval.  The final decision-making body or approving agency for the request for approval is not required to be the accepting authority.  The planning department for the county in which the proposed action will occur shall be a permissible accepting authority for the final statement.  For a renewable energy facility, the energy resources coordinator under chapter 201N shall be the accepting authority.

     Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action.  Upon acceptance or nonacceptance of the final statement, the agency shall file notice of the determination with the office.  The office, in turn, shall publish the determination of acceptance or nonacceptance of the final statement pursuant to section 343-3.

     The agency receiving the request, within thirty days of receipt of the final statement, shall notify the applicant and the office of the acceptance or nonacceptance of the final statement.  The final statement shall be deemed to be accepted if the agency fails to accept or not accept the final statement within thirty days after receipt of the final statement; provided that the thirty-day period may be extended at the request of the applicant for a period not to exceed fifteen days.

     In any acceptance or nonacceptance, the agency shall provide the applicant with the specific findings and reasons for its determination.  An applicant, within sixty days after nonacceptance of a final statement by an agency, may appeal the nonacceptance to the environmental council, which, within thirty days of receipt of the appeal, shall notify the applicant of the council's determination.  In any affirmation or reversal of an appealed nonacceptance, the council shall provide the applicant and agency with specific findings and reasons for its determination.  The agency shall abide by the council's decision."

     SECTION 7.  Chapter 201N, part I, Hawaii Revised Statutes, is repealed.

     SECTION 8.  If a prospective developer of a renewable energy facility has submitted an application for a state or county permit necessary for the siting, development, construction, or operation of the facility before July 1, 2014, the prospective developer may:

     (1)  Request the relevant state or county agency to proceed with reviewing, processing, and acting upon the permit application; or

     (2)  Withdraw the permit application and submit a consolidated application to the energy resources coordinator pursuant to part of chapter 201N, Hawaii Revised Statutes, established by section 2 of this Act; provided that if the prospective developer chooses to submit a consolidated application, the relevant state or county agency shall transmit to the coordinator all documents applicable to the withdrawn permit application, except those that the agency finds are internal work product that may expose the agency to liability if released.

     If the prospective developer has submitted two or more permit applications with state or county agencies before July 1, 2014, the prospective developer may select the action under paragraph (1) for some applications and the action under paragraph (2) for other applications.

     A draft or final environmental impact statement under preparation by a prospective developer for a state or county permit application submitted before July 1, 2014, may be used for a consolidated application submitted to the coordinator.  The prospective developer shall not be required to begin the environmental impact statement process anew if withdrawing the permit application and submitting a consolidated application.

     SECTION 9.  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 2014-2015 for the establishment and operation of the renewable energy facility siting process established under this Act.

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

     SECTION 10.  In codifying the new sections added by section 2 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 11.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 12.  This Act shall take effect on July 1, 2014.

 

INTRODUCED BY:

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Report Title:

Construction Industry Task Force; Renewable Energy; Renewable Energy Facility Siting Process; Appropriation

 

Description:

Establishes a renewable energy facility siting process to expedite the review and action upon state and county permits necessary for the siting, development, construction, and operation of a renewable energy facility.

 

 

 

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