SB2704

SECTION 1. Wireless broadband services are a significant and growing part of the nation's economy that have a significant positive impact on productivity in nearly every industry, from healthcare to tourism. To support this growth, wireless service providers are investing billions on the deployment of wireless broadband technology to meet the current and forecast customer demand. This investment will dramatically increase connection speeds and the availability and variety of services and drive growth in jobs and gross domestic product, while providing a critical platform for the "internet of things" that will enable the realization of significant economic value from smart communities and other economic activity. The primary impediment to realizing these gains is often the ability to adjust public policy to support the timely and efficient deployment of infrastructure.

A key to many of the State's economic development initiatives is the availability of an advanced wireless broadband network. For example, a competitive tourism industry requires access to mobile on-demand services using the latest generation technology. This infrastructure will also be critical to achieving the State's goal of developing more than eighty thousand technology related jobs paying an annual salary of more than $80,000 by 2030. As the most isolated population center in the world, Hawaii has a greater need for interconnectivity. Unfortunately, the State currently ranks among the nation's lowest in broadband speeds available to consumers and among the lowest in wireless broadband service availability. Hawaii's wireless broadband network is at a steep competitive disadvantage when compared to other countries throughout the Pacific Rim.

Therefore, the legislature finds that encouraging the development of a robust wireless broadband network throughout the State is integral to Hawaii's economic competitiveness and a matter of statewide concern.

In addition to these economic development benefits, the rapid deployment of wireless broadband technology will help to immediately improve network capacity to meet the demand for wireless data from Hawaii residents. Consumers are using sophisticated mobile devices to access the Internet like never before for virtually everything, including public safety, school homework, job searches, and high definition video, and as a result, consumers' mobile broadband use is growing exponentially. Indeed, consumer demand for wireless broadband connectivity is greater and growing faster than ever. In 2017, wireless networks carried more than one hundred thousand times the mobile data traffic than was carried in 2008. If not addressed, this skyrocketing consumer demand can cause network congestion, which slows down broadband connections, degrading the consumer's broadband experience even where there is coverage. These challenges are a function of network capacity and occur in every region of the State, wherever there is a cluster of people and devices attempting to connect to the Internet simultaneously. This unprecedented growth in mobile broadband consumption is driving the consumer's urgent need for wireless providers to add capacity to existing wireless infrastructure in the State. This Act seeks to address the difficulties in deploying wireless infrastructure and to increase competitive options for communications services, improve the communications network, and promote public safety, job growth, and education.

To realize these objectives and support this important infrastructure investment that will benefit the State's consumers without any public infrastructure investment, wireless providers need a reasonable and reliable process to deploy wireless facilities. The process must include: (1) access to public rights of way and the ability to utilize government-owned infrastructure in the rights of way; (2) reasonable and uniform cost-recovery based rates and fees for the permitting and deployment of small wireless facilities in rights of way and on public infrastructure, including state or county owned utility poles; and (3) a reasonable and uniform process for deploying the facilities on public infrastructure.

This Act is essential to establishing the policy framework to foster the installation of a robust, reliable, and technologically advanced wireless broadband network throughout the State.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 13 to be appropriately designated and to read as follows:

"Chapter

WIRELESS BROADBAND AND COMMUNICATIONS NETWORKS

§ -1 Applicability. This chapter shall only apply to activities of a wireless provider to deploy small wireless facilities and to modified or replaced utility poles associated with small wireless facilities.

§ -2 Definitions. For purposes of this chapter:

"Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of services using wireless facilities.

"Applicable codes" means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons to the extent not inconsistent with this chapter.

"Applicant" means any person who submits an application and is a wireless provider.

"Application" means a request submitted by an applicant to the State or county for a permit to collocate small wireless facilities or to approve the installation or modification of a utility pole.

"Collocate" means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. "Collocation" has a corresponding meaning.

"Communications service provider" means a cable operator, as defined in title 47 United States Code section 522(5); a provider of information service, as defined in title 47 United States Code section 153(24); a telecommunications carrier, as defined in title 47 United States Code section 153(51); or a wireless provider.

"Decorative pole" means a state or county pole that is specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than a small wireless facility attachment, specially designed informational and directional signage, or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory state or county rules or codes.

"Historic district" means a group of buildings, properties, or sites that are either listed in the National Register of Historic Places or as determined by the state historic preservation program in accordance with chapter 6E.

"Micro wireless facilities" means a small wireless facility having dimensions either:

(1) No larger than twenty-four inches in height, fifteen inches in width, and twelve inches in depth; or

(2) Twenty-four inches in length, fifteen inches in width, and twelve inches in height.

"Right of way" means the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property.

"Small wireless facilities" means a wireless facility that meets the following qualifications:

(1) Each wireless provider's antenna could fit within an enclosure of no more than six cubic feet in volume; and

(2) All other wireless equipment associated with the wireless facility, whether ground- or pole-mounted, is cumulatively no more than twenty-eight cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

"State or county pole" means a utility pole owned, managed, or operated by, or on behalf of, the State of Hawaii or a county in the State of Hawaii.

"Substantial modification" means a proposed modification or replacement to an existing utility pole or wireless support structure that will substantially change the physical dimensions of the utility pole or wireless support structure under the objective standard for substantial change adopted by the Federal Communications Commission pursuant to title 47 Code of Federal Regulations section 1.40001, or a proposed modification of the equipment compound boundaries in excess of the site dimensions specified in section III.B of title 47 Code of Federal Regulations part 1, appendix C.

"Technically feasible" means that by virtue of engineering or spectrum usage the proposed placement for a small wireless facility, or its design or site location can be implemented without a reduction in the functionality of the small wireless facility.

"Utility pole" means a pole or similar structure that is or may be used in whole or in part by or for wireline communications, electric distribution, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities. "Utility pole" shall not include wireless support structures.

"Wireless facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including:

(1) Equipment associated with wireless communications; and

(2) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.

"Wireless facility" includes small wireless facilities.

"Wireless provider" means an individual, corporation, company, association, trust, or other entity or organization who:

(1) Provides services, whether at a fixed location or mobile, to the public using wireless facilities; or

(2) Builds or installs wireless communication transmission equipment or wireless facilities, including an individual authorized to provide telecommunications service in the State.

"Wireless support structure" means a structure, such as a monopole, tower, either guyed or self-supporting building, or other existing or proposed structure designed to support or capable of supporting wireless facilities, other than a structure designed solely for the collocation of small wireless facilities. "Wireless support structure" shall not include a utility pole.

§ -3 General. Except as provided in this chapter, the State or any county shall not prohibit, regulate, or charge for the deployment of small wireless facilities or any associated modified or replaced utility poles used for the collocation of small wireless facilities.

§ -4 Zoning. Small wireless facilities and associated modified or replaced utility poles subject to the height limits in section -5(c), shall be classified as permitted uses and not subject to zoning review or zoning approval if they are deployed:

(1) In the right of way in any zone; or

(2) Outside the right of way in property not zoned exclusively for conservation.

§ -5 Use of the right of way for small wireless facilities and utility poles. (a) The State or county shall not enter into an exclusive arrangement with any person for use of the right of way for the construction, operation, marketing, or maintenance of small wireless facilities or utility poles.

(b) Subject to this section, the construction or modification of small wireless facilities in the right of way shall be a permitted use not subject to zoning review or other discretionary approval; provided that such structures and facilities shall be constructed and maintained so as not to obstruct the usual travel or public safety on such right of way or obstruct the legal use of such right of way by utilities. Modified or replaced utility poles associated with a small wireless facility that meet the requirements of this section are permitted uses subject to the permit process in section -6. No additional permit shall be required to maintain, operate, modify, or replace small wireless facilities and associated utility poles along, across, upon, and under the right of way.

(c) Each modified or replaced utility pole installed in the right of way for the collocation of small wireless facilities shall not exceed the greater of:

(1) Ten feet in height above the tallest existing utility pole in place as of the effective date of this Act located within five hundred feet of the modified pole in the same right of way; or

(2) Fifty feet above ground level.

New small wireless facilities in the right of way shall not extend more than ten feet above an existing utility pole in place as of the effective date of this Act. Subject to this section and section -6, a wireless provider may construct, modify, and maintain a utility pole or small wireless facility that exceeds these height limits along, across, upon, and under the right of way, subject to applicable zoning regulations.

(d) A wireless provider may replace a decorative pole, when necessary to collocate a small wireless facility, if the replacement pole reasonably conforms to the design aesthetics of the decorative pole or poles being replaced.

(e) Where the State or county has requirements for the undergrounding of facilities that pre-date the submission of an application, the State or county shall allow reasonable and nondiscriminatory access by wireless providers to place, construct, install, maintain, modify, operate, or replace state or county poles and other utility poles for the collocation of small wireless facilities subject to the requirements of this chapter.

(f) Subject to section -6, and except for facilities excluded from evaluation for effects on historic properties under title 47 Code of Federal Regulations section 1.1307(a)(4), a State or county may require reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions.

(g) The State or county shall be competitively neutral in the exercise of its administration and regulation related to the management of the right of way and with regard to other users of the right of way, shall not impose any conditions that are unreasonable or discriminatory.

(h) The State or county may require a wireless provider to repair all damage to the right of way directly caused by the activities of the wireless provider in the right of way and to return the right of way to its functional equivalence before the damage pursuant to the competitively neutral, reasonable requirements, and specifications of the State or county. If the wireless provider fails to make the repairs required by the State or county within a reasonable time after written notice, the State or county may complete those repairs and charge the applicable party the reasonable, documented cost of the repairs.

(i) The State or county shall modify laws or ordinances regulating the development of real property to ensure that new development of real property or the redevelopment of existing real property, including in residential zones, shall include locations in the right of way capable of accommodating a utility pole or other structure for the placement of a small wireless facility. Any such utility pole or other structure installed at the locations shall be installed and available for collocation consistent with the requirements of this chapter.

§ -6 Permitting process in the right of way. The State or county may require an applicant to obtain one or more permits to collocate a small wireless facility or install a modified or replaced utility pole associated with a small wireless facility as provided in section -5; provided that the permits are of general applicability and do not apply exclusively to wireless facilities. The State or county shall receive permit applications and process and issue permits subject to the following requirements:

(1) The State or county shall not directly or indirectly require an applicant to perform services or provide goods unrelated to the permit, such as in-kind contributions to the State or county including reserving fiber, conduit, or pole space for the State or county;

(2) An applicant shall not be required to provide more information to obtain a permit than is required of communications service providers that are not wireless providers; provided that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria in this subsection;

(3) The State or county shall not require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole;

(4) The State or county shall not limit the placement of small wireless facilities by minimum separation distances;

(5) The State or county may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless provider within one year after the permit issuance date; provided that the State or county and the applicant may agree to extend this period or the period may be tolled if a delay is caused by lack of commercial power or communications transport facilities to the site;

(6) Within ten days of receiving an application, the State or county shall notify the applicant in writing whether the application is complete. If an application is incomplete, the State or county shall specifically identify all missing information in writing. The processing deadline in paragraph (7) is tolled from the time the State or county sends the notice of incompleteness to the time the applicant provides the missing information;

(7) An application shall be processed on a nondiscriminatory basis and deemed approved if the State or county fails to approve or deny the application within sixty days of receipt of the application. The processing deadline may be tolled by agreement of the applicant and the State or county;

(8) The State or county may deny a proposed collocation of a small wireless facility or the construction or modification of a modified or replaced utility pole that meets the requirements in section -5(d) only if the proposed application:

(A) Materially interferes with the safe operation of public safety equipment;

(B) Materially interferes with sight lines or clear zones for transportation or pedestrians;

(C) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement;

(D) Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by ordinance that concern the location of ground-mounted equipment. Such spacing requirements shall not prevent a small wireless facility from serving any location; or

(E) Fails to comply with building or other applicable codes;

(9) The State or county shall document the basis for a denial, including the specific provisions of law on which the denial was based, and send the documentation to the applicant on or before the day the State or county denies an application. The applicant may address the deficiencies identified by the State or county and resubmit the application within thirty days of the denial without paying an additional application fee. The State or county shall approve or deny the revised application within thirty days. Any subsequent review shall be limited to the deficiencies cited in the original documentation noting the basis for denial;

(10) An applicant seeking to collocate small wireless facilities within the jurisdiction of a single county shall be allowed at the applicant's discretion to file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities; provided that the denial of one or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same batch;

(11) Installation or collocation for which a permit is granted pursuant to this section shall be completed within one year of the permit issuance date; provided that the State or county and the applicant may agree to extend this period or the period may be tolled if a delay is caused by lack of commercial power or communications transport facilities to the site. Approval of an application authorizes the applicant to:

(A) Undertake the installation or collocation; and

(B) Subject to applicable relocation requirements and the applicant's right to terminate at any time, operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than twenty years, which must be renewed for equivalent durations so long as they are in compliance with the criteria set forth in this subsection;

(12) The State or county shall not institute, either expressly or de facto, a moratorium on filing, receiving, or processing applications or issuing permits or other approvals, if any, for the collocation of small wireless facilities or the installation or modification of utility poles to support small wireless facilities; and

(13) The State or county shall not require an application for:

(A) Routine maintenance;

(B) Replacement of small wireless facilities with small wireless facilities that are substantially similar or the same size or smaller; or

(C) Installation, placement, maintenance, operation, or replacement of micro wireless facilities on utility poles or that are strung on cables between existing utility poles, in compliance with the national electrical safety code. The State or county may, however, require a permit to work within the right of way for such activities, if applicable. Any such permits shall be subject to the requirements provided in section -5 and this section.

§ -7 Access to state or county poles within the right of way. (a) A person owning, managing, or controlling state or county poles in the right of way shall not enter into an exclusive arrangement with any person for the right to attach to such poles.

(b) The rates to collocate on state or county poles shall be nondiscriminatory regardless of the services provided by the collocating person. The rate to collocate on state or county poles shall be in accordance with section -8.

(c) The rates, fees, and terms and conditions for the make-ready work to collocate on the state or county pole shall be nondiscriminatory, competitively neutral, and commercially reasonable and shall comply with this chapter.

(d) The State or county shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation by a wireless provider, including pole replacement if necessary, within sixty days after receipt of a complete application. Make-ready work including any pole replacement shall be completed within sixty days of written acceptance of the good faith estimate by the applicant.

(e) The person owning, managing, or controlling the state or county pole shall not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to pre-existing or prior damage or noncompliance. Fees for make-ready work including any pole replacement shall not exceed actual costs or the amount charged to other communications service providers for similar work and shall not include any consultant fees or expenses.

(f) The provisions of this section shall apply to activities of the wireless provider within the right of way.

§ -8 Rates and fees within the right of way. (a) This section shall govern the State's or county's rates and fees for the placement of a wireless facility or utility pole in the right of way.

(b) The State or county shall not require a wireless provider to pay any rates, fees, or compensation to the State, county, or other person other than what is expressly authorized by this section for collocation of small wireless facilities on utility poles in the right of way or for the construction, operation, modification, and maintenance of utility poles in the right of way.

(1) The State or county may charge an application fee only if the fee is required for similar types of commercial development or construction within the State's or county's jurisdiction;

(2) Where costs to be recovered by an application fee are already recovered by existing fees, rates, or taxes paid by a wireless provider, no application fee shall be assessed;

(3) An application fee shall not include:

(A) Travel expenses incurred by a third party in its review of an application; or

(B) Direct payment or reimbursement of third party rates or fees charged on a contingency basis or a result-based arrangement;

(4) The application fees for collocation of small wireless facilities on an existing or replacement state or county pole shall not exceed $100 each; and

(5) The application fees for collocation of multiple small wireless facilities on an existing or replacement state or county pole shall not exceed $100 each for the first five small wireless facilities on the same application and $50 for each additional small wireless facility on the same application.

(d) The rate for collocation of a small wireless facility on a state or county pole in the right of way shall not exceed the actual, direct, and reasonable costs related to the wireless provider's use of space on the state or county pole not to exceed $40 per pole annually. In any dispute concerning the appropriateness of a cost-based rate for any state or county pole, the State or county shall have the burden of proving that the rate does not exceed the actual, direct, and reasonable costs for the applicant's use of the pole.

§ -9 Local authority. Subject to this chapter and applicable federal law, the State or county may continue to exercise zoning, land use, planning, and permitting within its jurisdictional boundaries, including with respect to utility poles; except that no state or county shall have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not owned or controlled by the State or county, other than to comply with applicable codes. Nothing in this chapter authorizes the State or county to require wireless facility deployment or to regulate wireless services.

§ -10 Implementation. No later than January 1, 2019, the State and each county shall adopt or modify laws, regulations, and agreements for lands within its jurisdiction that make available rates, fees, and other terms that comply with this chapter to wireless providers. In the absence of laws, regulations, and agreements that fully comply with this chapter and until such laws, regulations, or agreements are adopted, wireless providers may install and operate small wireless facilities and utility poles pursuant to this chapter.

§ -11 Indemnification, insurance, and bonding. (a) The State or county may adopt indemnification, insurance, and bonding requirements related to small wireless facility permits subject to this section.

(b) The State or county may require a wireless provider to indemnify and hold the State or county and its officers and employees harmless against any claims, lawsuits, judgments, costs, liens, losses, expenses, or fees resulting from the wireless provider's actions in installing, repairing, or maintaining any wireless facilities or utility poles.

(c) The State or county may require a wireless provider to have in effect insurance coverage consistent with this subsection and requirements for other right of way users, if such requirements are reasonable and nondiscriminatory. The State or county shall not require a wireless provider to obtain insurance naming the State or county or its officers and employees as an additional insured. If insurance coverage is required, the State or county may require a wireless provider to furnish proof of insurance prior to the effective date of any permit issued for a small wireless facility.

(d) The State or county may adopt bonding requirements for small wireless facilities if the State or county imposes similar requirements in connection with permits issued for other right of way users.

The purpose of such bonds shall be to:

(1) Provide for the removal of abandoned or improperly maintained small wireless facilities, including those that the State or county determines a need for the small wireless facilities to be removed to protect public health, safety, or welfare;

(2) Restoration of the right of way; or

(3) Recoupment of past due rates or fees that have not been paid by a wireless provider in over twelve months; provided that the wireless provider has received reasonable notice from the State or county of the non-compliance listed and an opportunity to cure the rates or fees.

Bonding requirements shall not exceed $200 per small wireless facility.

For wireless providers with multiple small wireless facilities within the jurisdiction of a single state or county, the total bond amount across all facilities shall not exceed $10,000, which amount may be combined into one bond instrument."

SECTION 3. Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Rural districts shall include activities or uses as characterized by low density residential lots of not more than one dwelling house per one-half acre, except as provided by county ordinance pursuant to section 46-4(c), in areas where "city-like" concentration of people, structures, streets, and urban level of services are absent, and where small farms are intermixed with low density residential lots except that within a subdivision, as defined in section 484-1, the commission for good cause may allow one lot of less than one-half acre, but not less than eighteen thousand five hundred square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on such lot; provided that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21,780 square feet. Such petition for variance may be processed under the special permit procedure. These districts may include contiguous areas which are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics. Rural districts shall also include golf courses, golf driving ranges, and golf-related facilities.

In addition to the uses listed in this subsection, rural districts shall include geothermal resources exploration and geothermal resources development, as defined under section 182‑1, and wireless communication antenna, as defined under section 205-4.5(a)(18), as permissible uses."

SECTION 4. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:

(1) Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

(5) Public institutions and buildings that are necessary for agricultural practices;

(6) Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;

(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

(9) Agricultural-based commercial operations as described in section 205-2(d)(15);

(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);

(11) Agricultural parks;

(12) Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:

(A) The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;

(B) The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or

(C) The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;

(13) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

(14) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

(15) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land;

(16) Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuel processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

For the purposes of this paragraph:

"Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuel processing facilities.

"Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy;

(17) Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity. To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise. The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.

As used in this paragraph:

"Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.

"Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.

"Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.

"Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;

(18) Construction and operation of wireless communication antennas[;], including wireless facilities; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection; provided further that "wireless facilities" shall have the same meaning as in section -2;

(19) Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations. For the purposes of this paragraph, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;

(20) Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser or for which a special use permit is granted pursuant to section 205-6; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A unless the solar energy facilities are:

(A) Located on a paved or unpaved road in existence as of December 31, 2013, and the parcel of land upon which the paved or unpaved road is located has a valid county agriculture tax dedication status or a valid agricultural conservation easement;

(B) Placed in a manner that still allows vehicular traffic to use the road; and

(21) Solar energy facilities on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating B or C for which a special use permit is granted pursuant to section 205-6; provided that:

(A) The area occupied by the solar energy facilities is also made available for compatible agricultural activities at a lease rate that is at least fifty per cent below the fair market rent for comparable properties;

(B) Proof of financial security to decommission the facility is provided to the satisfaction of the appropriate county planning commission prior to date of commencement of commercial generation; and

(i) Removal of all equipment related to the solar energy facility within twelve months of the conclusion of operation or useful life; and

(ii) Restoration of the disturbed earth to substantially the same physical condition as existed prior to the development of the solar energy facility.

For the purposes of this paragraph, "agricultural activities" means the activities described in paragraphs (1) to (3);

(22) Geothermal resources exploration and geothermal resources development, as defined under section 182‑1; or

(23) Hydroelectric facilities, including the appurtenances associated with the production and transmission of hydroelectric energy, subject to section 205-2; provided that the hydroelectric facilities and their appurtenances:

(A) Shall consist of a small hydropower facility as defined by the United States Department of Energy, including:

(i) Impoundment facilities using a dam to store water in a reservoir;

(ii) A diversion or run-of-river facility that channels a portion of a river through a canal or channel; and

(iii) Pumped storage facilities that store energy by pumping water uphill to a reservoir at higher elevation from a reservoir at a lower elevation to be released to turn a turbine to generate electricity;

(B) Comply with the state water code, chapter 174C;

(C) Shall, if over five hundred kilowatts in hydroelectric generating capacity, have the approval of the commission on water resource management, including a new instream flow standard established for any new hydroelectric facility; and

(D) Do not impact or impede the use of agricultural land or the availability of surface or ground water for all uses on all parcels that are served by the ground water sources or streams for which hydroelectric facilities are considered."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval; provided that this Act shall apply to permit applications filed with the State or county after December 31, 2018.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2704
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII