TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO GEOTHERMAL RESOURCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that geothermal development in Hawaii was formerly regulated in state and local jurisdictions by using a system of subzones and permitting that was initially established by Act 296, Session Laws of Hawaii 1983. The system of geothermal regulation using subzones was repealed by Act 97, Session Laws of Hawaii 2012.
The legislature further finds that the county of Hawaii completed a Geothermal Public Health Assessment, and on March 17, 2014, Attorney General Opinion No. 14-1, "Management and Disposition of Geothermal Resources on DHHL Lands", concluded that the department of Hawaiian home lands is entitled to 100 per cent of geothermal royalties from its lands.
The legislature further finds that there is a need for an appropriate frame work to regulate geothermal development, and that such regulation in state and local jurisdictions should be based on former regulatory methods and the various experiences of geothermal operations in the county of Hawaii during the past several decades and additional contemporary considerations.
The purpose of this Act is to:
(1) Establish a geothermal resources development permits procedure;
(2) Prohibit hydraulic fracturing; and
(3) Encourage the counties to implement the recommendations of the final report of the geothermal public health assessment working group.
SECTION 2. Chapter 196D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§196D- Geothermal resources development permits. (a) A permit for geothermal resources development within an urban, rural, or agricultural district, as provided under section 205-2, may be issued by the appropriate county authority.
(b) A permit for geothermal resources development within a conservation district may be issued by the board.
(c) A permit for geothermal resources development within the Hawaiian home lands may be issued by the commission, in technical consultation with the board.
(d) In addition to the requirements of this section, each county may adopt ordinances and rules to enhance protection to the environment and to public health and safety.
(e) After accepting a duly filed and completed application on forms to be furnished by the appropriate county authority, as well as supporting data as may be required by the appropriate county authority, the permitting entity shall conduct a public hearing on the island where the geothermal resources development is proposed; provided that the public hearing shall be conducted in geographic proximity to the area that may be affected by the proposed geothermal development. For purposes of the public hearing:
(1) The permitting authority may summon witnesses, compel discovery and disclosure of evidence, administer oaths, and require testimony from witnesses;
(2) The notice of public hearing shall be published on three separate days in a newspaper of general circulation in the county where the public hearing is held; provided that the first publication of notice shall be not less than twenty days prior to the date set for the hearing. The notice shall be mailed to all owners of land within three thousand feet of the proposed geothermal resources development. Copies of the notice shall be submitted to the department of land and natural resources, department of business, economic development, and tourism, department of Hawaiian home lands, and planning commission and planning department of the county in which the proposed geothermal development is located;
(3) Unless an extension is agreed to by the applicant and the permitting authority, the permitting authority shall issue a final decision not later than six months after the conclusion of the public hearing. If the decision is appealed, a contested case proceeding under section 91-9 shall be initiated.
(f) An applicant for a geothermal resources development permit shall be required to satisfy the environmental review process of chapter 343 and shall include a detailed analysis of the following:
(1) The potential for the production of geothermal energy in the area proposed by the applicant;
(2) The prospects of the utilization of geothermal energy in the area;
(3) The potential geologic hazards posed by the proposed development;
(4) Cultural, social, and economic impacts of the proposed development;
(5) Health, safety, and nuisance impacts on the surrounding land;
(6) The compatibility of geothermal development and potentially related industries with present uses of surrounding land;
(7) The compatibility of geothermal development with the county general plan and county land use policies in the county where the proposed development is located;
(8) The potential economic benefits to the State and county anticipated to be derived from the proposed development;
(9) Alternative methods of electricity development in the same proposed quantity and area, including the comparative impacts and benefits; and
(10) Emission monitoring and emergency response measures that are appropriate for the area and surrounding properties in which the proposed development is located.
(g) A geothermal resources development permit may be issued if the permitting entity finds that:
(1) The environmental review required under subsection (f) is complete and satisfactory;
(2) Applicable zoning ordinances and county plans are complied with; and
(3) The proposed geothermal resources development would not:
(A) Have unreasonable adverse health, environmental, or socioeconomic effects on residents and surrounding property; or
(B) Unreasonably burden public agencies in providing roads, streets, sewers, water, drainage, school improvements, and police and fire protection;
provided that the permitting entity may prescribe mitigating actions to be taken by the applicant to address any effects or burdens, including the establishment of an appropriate buffer zone between the proposed geothermal resource development and abutting land, as a condition of permit approval."
SECTION 3. Chapter 344, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§344- Hydraulic fracturing prohibited. Hydraulic fracturing is prohibited."
SECTION 4. Section 182-6, Hawaii Revised Statutes, is amended to read as follows:
Exploration. Any person wishing to conduct
exploration on state lands shall apply to the [
board of land and natural
resources who] appropriate county authority, as defined in section 196D- ,
which shall issue exploration permits [ upon terms and conditions as it
shall by regulation prescribe.] in accordance with section 196D- .
During and as a result of the exploration, no minerals of such types and
quantity beyond that reasonably required for testing and analysis shall be
extracted and removed from such state lands. Upon termination of the
exploration permit, the drill logs and the results of the assays resulting from
the exploration shall be turned over to the board and kept confidential by the
board. If the person shall not make application for a mining lease of the
lands within a period of six months from the date the information is turned
over to the board, the board in its discretion need not keep the information
This section shall be construed as authorizing the board to issue an exploration permit for geothermal resources as well as minerals."
SECTION 5. Section 196D-3, Hawaii Revised Statutes, is amended by adding six new definitions to be appropriately inserted and to read as follows:
""Appropriate county authority" means the county planning commission unless another agency or body is designated by ordinance of the county council.
"Board" means the board of land and natural resources.
"Commission" means the Hawaiian homes commission.
"Geothermal resources" shall have the same meaning as in section 182-1.
"Geothermal resources development" shall have the same meaning as in section 182-1.
"Permitting entity" means the appropriate county authority issuing a permit for geothermal resources development under section 196D- ."
SECTION 6. Section 196D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department is designated as the lead agency for geothermal development on state lands, as defined in section 182-1, 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, except as provided under section 196D- , which shall incorporate the permitting functions of those agencies involved in the development of the project which are transferred by section 196D-10 to the department to effectuate the purposes of this chapter."
SECTION 7. Section 196D-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
The] Except as provided in section 196D- , the department
shall serve as the lead agency for the consolidated permit application and
review process established pursuant to section 196D-4(b) and as set forth in
this section for the project. All agencies whose permitting functions are not
transferred by section 196D-10 to the department for the purposes of the
project are required to participate in the consolidated permit application and
SECTION 8. Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
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 [
counties under section 196D- . 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
(1) Such functions of the land use commission related to: district boundary amendments as set forth in section 205-3.1 et seq.; 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."
SECTION 9. Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Except as otherwise provided, an environmental assessment shall be required for actions that:
(1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies; provided further that an environmental assessment for proposed uses under section 205‑2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to section 205-5(b);
(2) Propose any use within any land classified as a conservation district by the state land use commission under chapter 205;
(3) Propose any use within a shoreline area as defined in section 205A-41;
(4) Propose any use within any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;
(5) Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";
(6) Propose any amendments to existing county general plans where the amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general plan or amendments to any existing county general plan initiated by a county;
(7) Propose any reclassification of any land classified as a conservation district by the state land use commission under chapter 205;
(8) Propose the construction of new or the expansion or modification of existing helicopter facilities within the State, that by way of their activities, may affect:
(A) Any land classified as a conservation district by the state land use commission under chapter 205;
(B) A shoreline area as defined in section 205A-41; or
(C) Any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E; or until the statewide historic places inventory is completed, any historic site that is found by a field reconnaissance of the area affected by the helicopter facility and is under consideration for placement on the National Register or the Hawaii Register of Historic Places; and
(9) Propose any:
(A) Wastewater treatment unit, except an individual wastewater system or a wastewater treatment unit serving fewer than fifty single-family dwellings or the equivalent;
(B) Waste-to-energy facility;
(D) Oil refinery; [
(E) Power-generating facility[
(F) Geothermal resources development, pursuant to section 196D- (f)."
SECTION 10. The legislature finds that geothermal resources development can affect public health, safety, and well-being. The county of Hawaii funded a study of geothermal-related issues that resulted in a Geothermal Public Health Assessment Study Group's Final Report, Geothermal Public Health Assessment (2013). By preparing baseline studies that measure the parameters explored and described in the text and recommendations of the Final Report, future studies can more easily establish the magnitude of such effects.
The Final Report refers to the prevention of air and water pollution and excessive noise from geothermal development and states that related monitoring systems and protocols must be competent. Establishing competent monitoring systems and emergency response plans will help assure that the health and welfare of citizens will be protected.
Further, geothermal development may affect water wells downstream from the development area as well as the coastal basal brackish groundwater and the ocean near the geothermal plant. By establishing a baseline pursuant to recommendations of the Final Report, future water studies should be able to establish the magnitude and possible responsibility for environmental impacts from geothermal development.
Recommendation 8 of the Final Report is that the county should require future geothermal developers to fund and assure baseline studies prior to development.
The purpose of this part is to recommend and encourage each permitting entity to implement, by its rules or otherwise, certain recommendations of the Final Report, such as the creation of baseline studies as well as competent monitoring resources and protocols, prior to new geothermal drilling or development, that the permitting entity finds appropriate for its jurisdiction. Further, because geothermal resources development and exploration may present industrial levels of noise in or adjacent to residential areas, the permitting entities also are urged to assure that any permitted noise does not exceed levels that are appropriate in view of nearby residential properties and zoning.
SECTION 11. This Act shall apply to any geothermal resources producer operating within the jurisdiction of a permitting entity as of the effective date of this Act. The geothermal resources producer may continue to operate pursuant to existing permits until ninety days after a permitting entity with jurisdiction adopts rules governing geothermal resources development pursuant to this Act and chapter 91, Hawaii Revised Statutes. If, during the ninety-day period, the geothermal resources producer submits an application to the permitting entity in compliance with this Act and the rules, the geothermal resources producer may continue to operate within the limits of existing permits until action on the application has been completed.
SECTION 12. Pursuant to article VIII, section 5, of the Constitution of the State of Hawaii, 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 2015-2016 and the same sum or so much thereof as may be necessary for fiscal year 2016-2017 for expenses of the county of Hawaii to administer geothermal resources development permits pursuant to this Act.
The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect on July 1, 2015.
Geothermal; Permits; Appropriation
Establishes a geothermal resources development permit system. Prohibits hydraulic fracturing. Makes appropriation to county of Hawaii.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.