Renewable Energy Permitting

Sent to us by Jim Thompson:

There was a conference call this morning with representatives of the Hawaii Science and Technology Council, the UH Energy Policy Forum, the Farm Bureau, Senator Carol Fukunaga's Renewable Energy Sub-Group, Sun Fuels on the Big Island, and Pacific Bio-Fuel on Maui.

There was unanimous concensus to forward the attached package of legislation which a friend of mine who works at Belt Collins drafted to Senator Fukunaga for introduction in the 2010 session. It's a small start.

Overview
The following amendments are proposed to address the challenges created by a land use permitting and approval system that is inconsistent with the objectives of the State Legislature to increase renewable energy development in Hawai`i. The intent of the following recommendations is to improve the permitting climate in a budget-neutral manner.

1. A Proposal to Reduce the Length of the Permitting Process

Issue:
The processing of permits is often delayed, especially at the county level, by the accepting agency refusing to officially accept an application for processing. This refusal is often couched as ‘requesting additional information’. These requests for information can be endless, as there is no deadline for the agency to act. While this may seem to be a minor problem, at best, in reality, projects have been delayed for a year or more because they are unable to even get their permit application accepted by the agency for processing.

Remedy:
Impose upon the agencies a non-negotiable time limit for accepting an application for processing so long as the application meets the minimum content requirements specified by the agency in its written rules. Any legitimate needs for additional information can be requested by the agency during the analysis it conducts after an application has been officially accepted for processing.

46-19.4 Priority permitting process for renewable energy projects.

All agencies shall provide priority handling and processing for all county permits required for renewable energy projects. An application that fulfills the minimum content requirements established by the agency in its written rules shall be accepted for processing within 10 working days of the date is was received by the agency.

For purposes of this section, “agencies” means any executive department, independent commission, board, bureau, office, or other establishment of a county, or any quasi-public institution that is supported in whole or in part by county funds. (new text underscored)

196-1.5 Priority permitting process for renewable energy projects.

All agencies shall provide priority handling and processing for all state permits required for renewable energy projects. An application that fulfills the minimum content requirements established by the agency in its written rules shall be accepted for processing within 10 working days of the date is was received by the agency.

For purposes of this section, “agencies” means any executive department, independent commission, board, bureau, office, or other establishment of the State, or any quasi-public institution that is supported in whole or in part by state funds. (new text underscored)

2. A Proposal to Strengthen Implementation of Act 173 (2009)

Issue:
The recent enactment of Act 173 (2009) to allow renewable energy projects to be exempted from subdivision requirements was undermined by a provision at section 201N-A(d)(5) that declares an application to be disapproved if no action is taken within the proscribed 90 days. This ‘loophole’ allows the agency to simply not accept a subdivision exemption for processing: if the agency does nothing, the matter dies in 91 days. In fact, based on the existing language, an agency can advise the applicant that it will not even consider an Act 173 application.

Remedy:
Provide the applicant a means of redress. If a request for an exemption is disapproved, the applicant is provided a means to appeal the decision. This will force the agency to process the request in the first-place and render a clear determination, rather than simply ignore the request.

201N-A Exemption from subdivision requirements

(d)(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, 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. If an exemption is disapproved, the applicant may appeal the decision to the county board of appeals, or the board of land and natural resources, whichever is applicable. (new text underscored)

3. A Proposal to Expand the Potential for Renewable Energy in Hawai`i

Issue:
While there is consensus that Hawai`i should greatly reduce its dependency upon fossil fuel by facilitating the development of renewable and sustainable energy facilities within the State, we are having a difficult time implementing new projects because of restrictions imposed by existing land use controls.

Problem:
State Land Use Districts (Act 187): The State Land Use Law, as expressed in Chapter 205, HRS, remains largely incompatible with the State’s energy objectives. Sustainable and renewable energy projects (wind, solar and hydroelectric) are not allowed in the Conservation District. Because they are typically land intensive, they are generally precluded from the Urban District due to the high cost of land. Although the objectives of the Agricultural District have been recently amended to accommodate them on D and E lands, renewable energy projects are perceived as competing with and therefore threatening agricultural interests and the long-term preservation of agricultural land. Land in the Rural District generally consists of thousands of small parcels widely disbursed throughout the state and they are therefore unsuitable for most renewable energy projects.

Legislative History: The creation of the Conservation District pursuant to Act 187 originally resulted from the renaming of Hawaii’s forest reserves and watersheds (Act 234 in 1957). Subsequent enactment of the State Land Use Law led to the delineation of the Conservation District boundaries and expansion of the District by the staff of the State Land Use Commission in 1964. Ten years later, in 1974, Hawaii’s Environmental Protection Act was adopted and codified as Chapter 343, HRS, creating a vigorous system of disclosure and analysis that was neither available nor contemplated when the Conservation District was created. Four years later, in 1978, the DLNR adopted new rules that created four subzones within the Conservation District (Protective, Limited, Resource and General) to establish a clear hierarchy of uses (with Protective being the most restrictive and General being the least restrictive).

Consequence: As the result of profound global changes (the decline of oil resources and the emerging awareness of global warming), Hawai`i’s singular reliance upon energy derived from fossil fuel has been found by the Legislature to be incompatible with the objectives of increased self-sufficiency and long-term economic stability. However, the development of new sustainable and renewable energy alternatives has been severely constrained by multi-layered and rigid land use controls. Although some controls have been amended to allow for the possibility of new energy technologies, approximately 48 percent of the state’s entire land mass (the Conservation District) remains off-limits to energy development at the very time when the greatest flexibility and creativity is needed.

Remedy: This dilemma can be rectified by allowing the development of new sustainable and renewable energy projects in the Conservation District subzones that are compatible with such activity (Resource and General subzones). The oversight provided by Chapter 343, which is required for all uses within the Conservation District, will ensure that the impacts of proposed energy development are fully analyzed and disclosed for the benefit of decision makers. Placing decision-making in the hands of the Board of Land and Natural Resources will help to streamline the permitting process by relegating authority to a single agency.

Recommendations:

Amend HRS Chapter 205-2(e) to include wind, solar, and hydroelectric developments as a permitted use in the Resource and General subzones of the Conservation District.

“(e) Conservation districts shall include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish and wildlife, including those which are threatened or endangered; preventing floods and soil erosion; forestry; open space areas whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding communities, or would maintain or enhance the conservation of natural or scenic resources; areas of value for recreational purposes; other related activities; and other permitted uses not detrimental to a multiple use conservation concept, including wind turbines, wind farms, solar energy facilities, and low-impact hydropower facilities.” [proposed language underscored]

Amend HRS Chapter 183C-4(d) to expand permitted uses in Conservation subzones:

“(d) The department shall establish zones within the conservation district, which shall be restricted to certain uses. The department, by rules, may specify the land uses permitted therein which may include, but are not limited to, farming, flower gardening, operation of nurseries or orchards, growth of commercial timber, grazing, recreational or hunting pursuits, establishment of wind turbines, wind farms, solar energy facilities, and low-impact hydropower facilities, or residential use. The rules may control the extent, manner, and times of the uses, and may specifically prohibit unlimited cutting of forest growth, soil mining, or other activities detrimental to good conservation practices.” [new language underscored]