Seawater Air Conditioning Development Permitting Act of 2004.
Creates a consolidated permit application and review process for the development of SWAC/TES district cooling systems to streamline the approval and permit process.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
relating to a consolidated permit application process.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's seawater air conditioning thermal energy storage (SWAC/TES) district cooling systems provide a substantial and long-term use of Hawaii's indigenous renewable energy resources. These renewable and efficient energy technologies could meet the State's air conditioning needs without using electricity, thus reducing the use of fossil fuels. Development of these systems would further state policies of developing indigenous renewable alternate energy resources and decreasing Hawaii's dependency on imported fossil fuels.
The State has sought to encourage private sector development of these systems. However, private sector companies are either unable or unwilling to expend the substantial amounts of funds needed to develop these systems. The fundamental impediment to private development of these projects is the diverse array of federal, state, and county land use planning, environmental, and other related laws and regulations that apply. The "Hawaii Integrated Energy Policy Report of 1991" found that the "permits and approvals that may be required for the development and siting of energy facilities such as conventional power plants, wind farms and hydroelectric power plants...can take up to seven years for a single project."
While permitting procedures are needed to ensure that commercial development projects are undertaken in a manner consistent with land use, planning, environmental, and other public policies, existing procedures are also duplicative, uncoordinated, and could be improved. One effort to ameliorate this problem resulted in enactment of the "Geothermal and Cable System Development Permitting Act of 1988," codified as chapter 196D. This Act sought to facilitate the development of geothermal resources through the consolidation of permit application and review processes.
Like geothermal projects, SWAC/TES district cooling projects are complex, large-scale projects requiring numerous permits. Similar legislation is needed to streamline the permit process and provide the firm assurances and predictability that would allow private companies to commit the substantial amounts of capital, time, and effort necessary to develop a SWAC/TES district cooling project.
The purpose of this Act is to establish a consolidated permit application and review process to encourage development of SWAC/TES district cooling projects by providing for the consolidation, coordination, and streamlining of the project permit review process.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
Seawater air conditioning development
§ -1 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 which is a part of the executive branch of that government, but does not include any public corporation or authority that may be established by the legislature for the purposes of the project.
"Applicant" means any person who, pursuant to statute, ordinance, rule, or regulation, requests approval or a permit of the proposed project.
"Approval" means a discretionary consent required from an agency prior to the actual implementation of the project.
"Board" means the board of land and natural resources.
"Department" means the department of land and natural resources or any successor agency.
"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).
"Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document or decision pertaining to any regulatory or management program which is related to the protection, conservation, use of, or interference with the natural resources of land, air, or water in the State and which 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, any public corporation or authority that may be established by the legislature for the purposes of the project, 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 development of a seawater air conditioning (SWAC)/thermal energy storage (TES) district cooling system, or systems.
"Review team" means the body consisting of the department, representatives of agencies having jurisdiction over any aspect of the applicant's project, and any public corporation or authority established by the legislature for the purposes of the project.
§ -2 Consolidated permit application and review process established. (a) There shall be a consolidated permit application and review process which shall streamline and expedite the permit application and review process for SWAC/TES district cooling system project applicants. The process shall incorporate, consolidate, and coordinate:
(1) The permitting functions of the department;
(2) Those permitting functions transferred to the department from the land use commission and department of transportation pursuant to section -3; and
(3) The permitting functions of agencies with jurisdiction over any aspect of the project whose permit functions have not been transferred to the department.
(b) The department shall:
(1) Administer the consolidated permit application and review process;
(2) Serve as lead agency in the consolidated permit application and review process interagency group established pursuant to section –4;
(3) Perform all of its permitting functions including those transferred to it under section -3;
(4) Create a consolidated permit application form to be used for all permitting purposes;
(5) Coordinate and consolidate to the fullest extent possible the permitting functions of the department and other agencies, including federal agencies with jurisdiction over any aspect of the project;
(6) Monitor the applicant's compliance with the terms and conditions of any permits issued; and
(7) Provide information and guidance to potential applicants regarding permits and procedures.
§ -3 Transfer of permitting functions. (a) The following permitting functions are transferred to the department insofar as they relate to and are necessary for implementation of the permit application and review process, permit issuance, and the monitoring and enforcement of permit terms and conditions under the provisions of the Hawaii Revised Statutes specified below:
(1) The permitting functions of the land use commission related to:
(A) District boundary amendments as set forth in sections 205-3.1 et seq.; and
(B) Changes in zoning as set forth in section 205-5;
(2) The permitting functions of the director of transportation and department of transportation related to permits for the use of, or commercial activities in or affecting, the ocean waters and shores of the State under chapter 266.
(b) Nothing in this section shall be construed to relieve an applicant from the laws, ordinances, and rules of any agency with jurisdiction over any aspect of the applicant's project, whose functions are not transferred to the department by this section.
§ -4 Consolidated permit application review team. (a) The department shall establish a consolidated permit application review group. All agencies whose permitting functions are not transferred to the department by section -3 shall participate in the consolidated permit application and review process through membership in the consolidated permit application review team. Each such agency shall designate an appropriate representative to serve on the review team who shall:
(1) Serve as liaison to the agency represented;
(2) Identify agency permits required for the project;
(3) Specify the regulatory and review responsibility of the agency and related responsibilities of the applicant;
(4) Assist in developing a timetable for regulatory review;
(5) Coordinate agency review procedures with those of other members of the interagency group;
(6) Identify measures that would serve to streamline the permit process; and
(7) Perform other duties as appropriate, to expedite processing of the applicant's consolidated permit application.
If the legislature establishes any public corporation or authority for the purposes of the project, then upon its establishment, the public corporation or authority shall be a member of the interagency group. The department shall invite and encourage each federal agency with jurisdiction over any aspect of the project to participate in the review team. The review team shall be administered by the department, which shall serve as lead agency.
(b) The department and agencies shall cooperate with federal agencies to the fullest extent possible to minimize duplication and where possible promote consolidation of federal and state requirements. This cooperation shall consist of, among other things, joint environmental impact statements with concurrent public review and processing at both levels of government. Where federal law requirements are in addition to but do not conflict with state law, the department and the agencies shall cooperate to the fullest extent possible in fulfilling their requirements so that all documents shall comply with all applicable laws.
§ -5 Consolidated permit application and review procedure. (a) The permit application and review procedure shall be as follows:
(1) The applicant shall submit a consolidated permit application on the form prescribed by the department and include whatever information about the proposed project the department deems necessary to fulfill the purposes of this chapter and to determine which agencies have jurisdiction over any aspect of the proposed project;
(2) Upon receipt of the consolidated permit application, the department shall form the consolidated permit application and review team by notifying all agencies whose permitting functions are not transferred by section -3, that the department has determined that the agency may have jurisdiction over the proposed project. The department shall also provide notice to federal agencies, and shall invite the federal agencies to participate in the consolidated permit application process;
(3) The department and state, county, and federal agencies participating on the team shall develop and sign a joint agreement among themselves which shall:
(A) Identify the members of the consolidated permit application and review 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 an environmental impact statement if necessary, 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 permit shall be held on the island where the proposed activity shall occur;
(4) The department and each participating agency shall issue its own permit or approval based upon its own jurisdiction;
(5) The applicant shall apply directly to each federal agency that does not participate in the consolidated permit application and review process;
(6) The department shall review for completeness and thereafter shall process the consolidated permit application submitted by an applicant for the project, and shall monitor the processing of the permit application by those participating agencies whose permitting functions are not transferred by section -3 to the department for the purposes of the project. The department shall coordinate, and seek to consolidate permitting functions where possible and shall monitor and assist in the permitting of all agencies having jurisdiction over any aspect of the project; and
(7) Once the processing of the consolidated permit application has been completed and the permits requested have been issued to the applicant, the department shall monitor the applicant's compliance with the terms and conditions of any permits issued.
(b) To the greatest extent possible, the department and each agency participating on the review team 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 (a)(3) and within the time limits contained in the applicable permit statutes, ordinances, regulations, or rules; provided that the department or any agency shall have good cause to extend the applicable time limit to the extent authorized by law if the permit-issuing agency must rely 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) Where the contested case provisions under chapter 91 apply to any one or more of the permits to be issued by the agency for the purposes of the project, the agency may, if there is a contested case involving any of the permits, 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 agency pursuant to a public hearing or hearings required in connection with a permit shall be made directly to the supreme court for final decision subject to chapter 602.
§ -6 Streamlining activities. In administering the consolidated permit application and review 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) Develop and implement 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;
(3) Adopt and implement needed streamlining measures identified by the interagency group in consultation with agencies participating in the review team and members of the public;
(4) Design, in addition to the consolidated permit application form, other applications, checklists, and forms essential to the implementation of the consolidated permit application and review process;
(5) Recommend to the legislature suggested changes to existing laws to eliminate any duplicative or redundant permit requirements;
(6) Coordinate with agencies to ensure that all standards used in any agency decision-making for any required permits are clear, explicit, and precise; and
(7) Incorporate rebuttable presumptions based upon requirements met for permits issued previously under the consolidated permit application and review process.
§ -7 Information services.The department shall:
(1) Operate a permit information and coordination center during normal working hours that provides guidance to potential applicants regarding 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 -3 and who may potentially have jurisdiction over any aspect of the development of a SWAC/TES district cooling system project.
§ -8 Construction of the chapter; rules. This chapter shall be construed liberally to effectuate its purposes, and the department shall have all powers which may be necessary to carry out the purposes of this chapter, including the authority to make, amend, and repeal rules to implement this chapter pursuant to chapter 91; provided that the consolidated permit application and review process shall not affect or invalidate the jurisdiction or authority of any agency under existing law except to the extent provided in section -3.
§ -9 Annual report. The department shall submit an annual report to the governor and the 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 to improve the consolidated permit application and review process and implement the intent of this chapter.
§ -10 Exemptions from certain state laws. Any person hired by the department to effectuate this chapter shall be exempt from chapters 76 and 89."
SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 4. This Act shall take effect on July 1, 2004.