Report Title:

Seawater Air Conditioning Development Permitting

Description:

Establishes a consolidated permit application and review process for the development of seawater air conditioning/thermal energy storage cooling systems to streamline the approval and permit process.

THE SENATE

S.B. NO.

3088

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to seawater air conditioning development permitting.

 

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

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

seawater air conditioning development permitting

   -1 Short title. This chapter shall be known and may be cited as the seawater air conditioning development permitting act.

   -2 Findings and declaration of purpose. The legislature hereby finds and declares that:

(1) The development of Hawaii's seawater air condition/thermal energy storage district cooling systems represents a substantial and long-term use of indigenous renewable energy and efficient energy technologies that could be used to displace electric energy needed to meet the State's air conditioning needs and concurrently help to reduced the State's need for imported fossil fuels;

(2) The State has deemed it appropriate that the private sector develop these seawater air conditioning/thermal energy storage district cooling systems, and, to that end, has sought to encourage private sector development of such systems;

(3) The private sector companies seeking to develop seawater air conditioning/thermal energy storage district cooling systems are, however, unable or unwilling to expend the substantial amounts of funds needed to develop these systems to their full extent without an assured and sufficiently large market for the air conditioning to be produced therefor;

(4) The greatest present and projected demand for seawater air conditioning/thermal energy storage district cooling systems is located on the island of Oahu, with some potential on the neighbor islands;

(5) A major and fundamental difficulty in the development of seawater air conditioning/thermal energy storage district cooling systems is the diverse array of federal, state, and county land use, planning, environmental, and other related laws and rules that currently control the undertaking of all commercial projects in the State;

(6) A large number of federal, state, and county agencies and authorities have jurisdiction and may grant or deny their approval and issue or withhold permits for a variety of projects in the State;

(7) Obtaining permits for project can be very costly. Permitting costs and the number of required permits were identified as some of the main impediments to renewable energy development at the 1989 Enhancing Renewable Energy Development in Hawaii workshop. Dozens of different permits may be required and the costs often represent a significant portion of total project costs. For example, the Hawaii Integrated Energy Policy Report of 1991 found that "17 agencies and statutory bodies are responsible for 46 state and 38 county government 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 and this complex system of permits and approvals can take up to seven years for a single project." This often inhibits or prevents development of these projects;

(8) These controls attempt to ensure that commercial development projects in general are undertaken in a manner consistent with land use, planning, environmental, and other public policies, except that some of these specific laws, regulations, and controls may be repetitive, duplicative, and uncoordinated;

(9) The Hawaii Integrated Energy Policy Report of 1991 also concluded that "there is a need to improve the efficiency of state permitting and approvals required for siting and development of energy facilities";

    (10) To a limited extent, the State and counties have sought to ameliorate this difficulty through the enactment or adoption of measures to improve the coordination and efficiency of land use and planning controls and specifically to facilitate the development of geothermal resources. One such effort was the Geothermal and Cable System Development Permitting Act of 1988, codified in chapter 196. This measure is closely patterned after that precedent-setting legislation;

   (11) The complexities of large-scale seawater air conditioning/thermal energy storage district cooling system projects necessitate the development of a consolidated permit application and review process, similar to that created for geothermal development in Hawaii, to provide for and facilitate the firm assurances that companies will require before committing the substantial amounts of funds, time, and effort necessary to undertake these developments, while at the same time ensuring the fulfillment of fundamental state and county land use and planning policies;

(12) The development of seawater air conditioning/thermal energy storage district cooling systems are in furtherance of the State's policies as expressed in the state plan and elsewhere, to develop the State's indigenous renewable alternate energy resources and to decrease the State's dependence on imported fossil fuels; and

(13) A consolidated permit application and review process for the development of seawater air conditioning/thermal energy storage district cooling systems should be established by an act of the legislature.

   -3 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Agency" means any department, office, board, or commission established within the executive branch of the State or its political subdivisions, 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, or rule, requests approval of or a permit for the proposed project.

"Board" means the board of land and natural resources.

"Department" means the department of land and natural resources.

"Discretionary consent" means a consent, sanction, or recommendation from an agency for which judgement and free will may be exercised by the issuing agency, as distinguished from 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 (P.L. 91-190).

"Interagency group" means the body established pursuant to section    -6.

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

"Person" includes any individual, partnership, firm, association, trust, estate, corporation, joint venture, consortium, or any public corporation or authority that may be established by the legislature for the purposes of the project, or a 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/thermal energy storage district cooling system.

   -4 Consolidated permit application and review process. (a) The department is designated as the lead agency for the purposes of this chapter and, in addition to its existing functions, shall establish and administer the consolidated permit application and review process provided for in this chapter, which shall incorporate the permitting functions of those agencies involved in the development of the project that are transferred by section    -10 to the department to effectuate the purpose of this chapter.

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

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

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

(3) All permit review and approval deadlines;

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

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

(6) A consolidated permit application form to be used for the project for all permitting processes; and

(7) Any other administrative procedures related to the foregoing.

(c) The department shall perform all of the permitting functions for which it is currently responsible and that are transferred to it by section    -10 for the purposes of the project, and shall coordinate and consolidate all required permit reviews by other agencies, and to the fullest extent possible by all federal agencies, having jurisdiction over any aspect of the project.

   -5 Consolidated permit application and review procedure. (a) The department shall serve as the lead agency for the consolidated permit application and review process established pursuant to section    -4(b) and as set forth in this section for the project. All agencies whose permitting functions are not transferred by section    -10 to the department for the purposes of the project are required to participate in the consolidated permit application and review process.

(b) To the greatest extent possible, the department and each agency whose permitting functions are not transferred by section    -10 to the department for the purposes of the project shall complete all of their respective permitting functions for the purposes of the project in accordance with the timetable for regulatory review set forth in the joint agreement described in subsection (c)(3) and within the time limits contained in the applicable permit statutes, ordinances, or rules; provided that the department or any agency shall have good cause to extend if, and as permitted, the applicable time limit of 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) The procedure shall be as follows:

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

(2) Upon receipt of the consolidated permit application, the department shall notify all agencies, including federal agencies, whose permitting functions are not transferred by section    -10 to the department for the purposes of the project and who the department determines may have jurisdiction over an aspect of the proposed project, to participate in the consolidated permit application process. Those agencies that accept the offer to participate shall thereafter participate in the consolidated permit application and review process;

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

(A) Identifies the members of the consolidated permit application and review team;

(B) Identifies all permits required for the project;

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

(D) Establishes 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) Provides that a hearing required for a permit shall be held on the island where the proposed activity shall occur;

(4) A consolidated permit application and review team shall be established and shall consist of the members of the interagency group established pursuant to section    -6(a). The applicant shall designate its representative to be available to the review team, as it may require, for purposes of processing the applicant's consolidated permit application;

(5) The department and each agency whose permitting functions are not transferred by section    -10 to the department for the purposes of the project, and each federal agency shall issue its own permit or approval based upon its own jurisdiction. 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 that the permitting functions of any agency are transferred by section    -10 to the department for the purposes of the project;

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

(7) 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 permit application by those agencies whose permitting functions are not transferred by section    -10 to the department for the purposes of the project. The department shall coordinate, and seek to consolidate where possible, the permitting functions and shall monitor and assist in the permitting functions conducted by all of these agencies, and to the fullest extent possible the federal agencies, in accordance with the consolidated permit application and review process; and

(8) 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 work undertaken pursuant to the permits to ensure the applicant's compliance with the terms and conditions of the permits.

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

   -6 Interagency group. (a) The department shall establish an interagency group comprised of those agencies whose permitting functions are not transferred by section    -10 to the department for the purposes of the project and that have jurisdiction over any aspect of the project. Each of these agencies shall designate an appropriate representative to serve on the interagency group as part of the representative's official responsibilities. The interagency group shall perform liaison and assisting functions as required by this chapter and the department. The department shall invite and encourage the appropriate federal agencies having jurisdiction over any aspect of the project to participate in the interagency group.

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

(c) 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.

   -7 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) Adopt and implement necessary streamlining measures identified by the interagency group, in consultation with those agencies whose permitting functions are not transferred by section    -10 to the department for the purposes of the project and with members of the public;

(3) 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;

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

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

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

   -8 Information services. The department shall:

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

(2) Maintain and update a repository of the laws, rules, procedures, permit requirements, and criteria of agencies whose permitting functions are not transferred by section    -10 to the department for the purposes of the project and that have control or regulatory power over any aspect of the project and of federal agencies having jurisdiction over any aspect of the project.

   -9 Construction of the chapter; rules. This chapter shall be construed liberally to effectuate its purposes, and the department shall have all powers that may be necessary to carry out the purposes of this chapter, including the authority to make, amend, and repeal rules to implement this chapter; provided that all procedures for public information and review under chapter 91 shall be preserved; and provided further that the consolidated permit application and review process shall not affect or invalidate the jurisdiction or authority of any agency under existing law. The adoption, amendment, and repeal of all rules shall be subject to chapter 91.

   -10 Transfer of functions. (a) Those functions identified in paragraphs (1) and (2) insofar as they relate to the permit application, review, processing, issuance, and monitoring of laws and rules and to the enforcement of terms, conditions, and stipulations of permits and other authorizations issued by agencies with respect to the development, construction, installation, operation, maintenance, repair, and replacement of the project, or any portion or portions thereof, are transferred to the department. With respect to each of the statutory authorities cited in paragraphs (1) and (2), the transferred functions include all enforcement functions of the agencies or their officials under the statute cited as may be related to the enforcement of the terms, conditions, and stipulations of permits, including but not limited to the specific sections of the statute cited. "Enforcement", for purposes of this transfer of functions, includes monitoring and any other compliance or oversight activities reasonably related to the enforcement process. These transferred functions include:

(1) Such functions of the land use commission related to: district boundary amendments as set forth in sections 205-3 to 205-4.1, and changes in zoning as set forth in section 205-5; and

(2) The permit approval and enforcement functions of the director of transportation or other appropriate official or entity in the department of transportation related to permits or approvals issued 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 whose functions are not transferred by this section to the department for the purposes of the project.

(c) This section shall not apply to any permit issued by the public utilities commission under chapter 269.

(d) Notwithstanding any other provision of this chapter, this section shall take effect on July 1, 2004.

-   11 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 further to improve the consolidated permit application and review process and implement the intent of this chapter.

   -12 Severability. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared severable.

   -13 Exemptions from certain state laws. In order to promote the purposes of this chapter, all persons hired by the department to effectuate this chapter shall be exempt from chapters 76 and 89."

SECTION 2. This Act shall take effect on July 1, 2004.

INTRODUCED BY:

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