HB2862

SECTION 1. The purpose of this Act is to establish a consolidated process for the approval of permits for a wind energy and undersea cable project. Under the project, electricity produced by wind power on the island of Lanai is to be transmitted by undersea cable for consumption on the island of Oahu. The department of business, economic development, and tourism is charged with responsibility over the consolidated permit approval process.

This Act is substantially similar to chapter 196D, Hawaii Revised Statutes, relating to a consolidated permitting process for the development of a geothermal energy and undersea cable system.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

WIND ENERGY AND UNDERSEA CABLE SYSTEM DEVELOPMENT

§ -1 Short title. This chapter shall be known and may be cited as the Wind Energy and Undersea Cable System Development Permitting Act.

§ -2 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, but does not include the state legislature.

"Applicant" means any person who, pursuant to statute, ordinance, rule, or regulation, requests any approval or permit required for the proposed project.

"Approval" means a discretionary consent required from an agency prior to the actual implementation of the project.

"Department" means the department of business, economic development, and tourism.

"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).

"Interagency group" means the body established pursuant to section -5.

"Permit" means any license, permit, certificate, certification, approval, compliance schedule, or 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 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 the foregoing, of:

(1) A wind energy facility, including all associated buildings, structures, other improvements, equipment, wells, and transmission lines, on the island of Lanai for the purpose of generating electric energy for transmission primarily to the island of Oahu through the cable system; and

(2) An interisland deep water electrical transmission cable system, including all land-based transmission lines and other ancillary facilities, to transmit wind generated electric energy from the island of Lanai to the island of Oahu, regardless of whether the cable system is used to deliver electric energy to any intervening point.

§ -3 Consolidated permit application, review, and approval 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, review, and approval 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 -9 to the department to effectuate the purposes of this chapter.

(b) The consolidated permit application, review, and approval 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) Any other administrative procedures related to the foregoing; and

(7) A consolidated permit application form to be used for the project for all permitting purposes.

(c) The department shall perform all of the permitting functions for which it is currently responsible and that are transferred to it by section -9 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.

§ -4 Consolidated permit application, review, and approval process; implementation. (a) The department shall serve as the lead agency for the consolidated permit application, review, and approval process established pursuant to section -3 and as set forth in this section for the project. All agencies whose permitting functions are not transferred by section -9 to the department for the purposes of the project are required to participate in the consolidated permit application, review, and approval process.

(b) To the greatest extent possible, the department and each agency whose permitting functions are not transferred by section -9 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, rules, or federal regulations; except that the department or any agency shall have good cause to extend, if and as permitted, the applicable time limit 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.

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

(2) Upon receipt of the consolidated permit application, the department shall notify all agencies whose permitting functions are not transferred by section -9 to the department for the purposes of the project, as well as all federal agencies, that the department determines may have jurisdiction over any aspect of the proposed project as set forth in the application and shall invite the federal agencies so notified to participate in the consolidated permit application process. The agencies, and those federal agencies that accept the invitation, thereafter shall participate in the consolidated permit application, review, and approval process;

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

(A) Identify the members of the consolidated permit application, review, and approval 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 any necessary environmental assessment or environmental impact statement, 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 particular permit shall be held on the island where the proposed activity shall occur. To the extent practicable, the department shall consolidate any hearings required for all permits that shall be required for the application;

(4) A consolidated permit application, review, and approval team shall be established and shall consist of the members of the interagency group established pursuant to section -5. 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 -9 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, review, and approval 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 -9 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, review, and approval 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 any permit application by those agencies whose permitting functions are not transferred by section -9 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, review, and approval process; and

(8) Once the processing of the consolidated permit application has been completed and all permits required for the project 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 department or any agency for the purposes of the project, the department or 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 department or agency pursuant to a public hearing or hearings required in connection with a permit shall be made directly on the record to the intermediate court of appeals, subject to chapter 602.

§ -5 Interagency group. (a) The department shall establish an interagency group comprised of those agencies whose permitting functions are not transferred by section -9 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 assistance 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.

§ -6 Streamlining activities. In administering the consolidated permit application, review, and approval 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 needed streamlining measures identified by the interagency group, in consultation with:

(A) Those agencies whose permitting functions are not transferred by section -9 to the department for the purposes of the project; and

(B) 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, review, and approval process;

(4) Recommend to the legislature, as appropriate, suggested changes to existing laws to eliminate any duplicative or redundant permit procedures or 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, review, and approval process.

§ -7 Information services. The department shall:

(1) Operate a permit information and coordination center during normal working hours, which shall provide guidance 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 -9 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.

§ -8 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, review, and approval process, except as provided in this chapter, 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.

§ -9 Transfer of functions. (a) Those functions identified in this subsection insofar as they relate to the permit application, review, processing, approval, 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 the transferred functions, all enforcement functions of the agencies or their officials related to the enforcement of the terms, conditions, and stipulations of the subject permits shall be transferred to the department. "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 are the review, processing, approval, and issuance of permits for the following (the statutory and ordinance citations for the enumerated permits are for guidance only):

(1) From the land use commission: Any district boundary amendment involving land areas greater than fifteen acres (section 205-4);

(2) From the department of business, economic development, and tourism: federal consistency review required for activity within the coastal zone (section 205A-3);

(3) From the department of health:

(A) Water quality certification for discharge into navigable waters (part III of chapter 342D); and

(B) Storm water discharge permit (part III of chapter 342D);

(4) From the department of land and natural resources:

(A) Conservation district use permit (section 183C‑6);

(B) Ocean dredging, filling, or construction permit (section 183C-6);

(C) Ocean lease, right-of-entry, or revocable permit for activity on state-owned lands, including submerged lands and sub-surface marine waters (section 190D-21);

(D) Incidental taking of a threatened or endangered species license (section 195D-4);

(E) Stream channel alteration permit (section 174C-71);

(F) Well construction and pump installation permit (section 174C-84);

(G) Historic property, aviation artifact, or burial site review (section 6E-42);

(H) Burial sites and human remains discovery (section 6E-43.6);

(I) Historic site review (section 6E-8);

(5) From the public utilities commission:

(A) Power purchase agreement (section 269-27.2); and

(B) High voltage transmission line development (chapter 269);

(6) From the county of Maui:

(A) Community plan and zoning requirements ( );

(B) Special use permit ( );

(D) Shoreline setback variance ( );

(E) Planned development approval ( ); and

(F) Subdivision, grubbing, grading, and building permits ( ); and

(7) From the city and county of Honolulu:

(A) Development plan and zoning requirements ( );

(B) ( ); and

(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) Except as provided in subsection (a)(5), this section shall not apply to any permit issued by the public utilities commission under chapter 269.

§ -10 Annual report. Twenty days prior to the convening of each regular session, the department shall submit an annual report to the governor and 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, review, and approval process and implement the intent of this chapter.

§ -11 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.

§ -12 Exemptions from certain state laws. In order to promote the purposes of this chapter, all persons hired by the department to effectuate this chapter are excepted from chapters 76 and 89."

SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ so much thereof as may be necessary for fiscal year 2008-2009 for the establishment of the consolidated permit application, review, and approval process for wind energy and undersea cable system development.

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

SECTION 4. This Act shall take effect on July 1, 2008.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2862
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII