SB1498

SECTION 1. The legislature recognizes that pursuant to section 205-41, Hawaii Revised Statutes, there is a compelling state interest in conserving state agricultural lands. Protecting these resources for Hawaii's future food security on public, as well as private, lands is in strong alignment with former Governor Abercrombie's 2010 A New Day in Hawaii plan for food and agriculture. The legislature also recognizes that Act 211, Session Laws of Hawaii 2008, as amended by Act 196, Session Laws of Hawaii 2010, established a taro security and purity task force that was responsible for developing guidelines, protocols, and recommendations for taro policy, among other duties. In a 2009 report entitled "E Ola Hou Ke Kalo; Hoi Hou Ka Aina Leia (The Taro Lives; Abundance Returns to the Land), the task force recommended improved protections for taro growing lands, including loi (wet fields and terraces), mala (dry fields and terraces), kuana or paepae pohaku (stone walls), and auwai (irrigation ditches). The task force found that these key structural elements for viable wetland taro production were being destroyed, severed, and built upon by private and public development because of gaps in land use, historic preservation, and planning laws and policies.

The purpose of this Act is to improve protections for wetland taro lands (loi kalo) and ancient wetland agricultural structures on undeveloped state-owned or -acquired lands.

SECTION 2. Section 171-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Taro lands" means any undeveloped public lands of high productivity determination situated in the land use conservation district established pursuant to chapter 205 in wetland taro cultivation before statehood, or any undeveloped public lands that were traditional taro lands situated in the land use conservation district established pursuant to chapter 205 that retain historic structural evidence of loi kalo, including auwai irrigation ditches, terraces, or walls."

SECTION 3. Section 171-10, Hawaii Revised Statutes, is amended to read as follows:

"§171-10 Classes of lands. The board of land and natural resources shall classify all public lands and in doing so be guided by the following classifications:

1. Intensive agricultural use

(A) First class--Lands highly productive of intensive crops such as sugarcane, pineapples, truck crops, and orchard crops.

(B) Second class--Lands having medium productivity for intensive crops.

(D) Fourth class--Taro land of high productivity determination limited to lands in the conservation district and having cultural, social, economic, and food self-sufficiency value if preserved for wetland taro cultivation. District boundary amendment of fourth class taro lands shall be prohibited. Notwithstanding any other law to the contrary, public lands classified as fourth class taro lands pursuant to this section shall not be subject to a district boundary amendment.

2. Special livestock use

(A) First class--Lands highly suitable for special livestock uses such as swine, dairy, and poultry production. In making the determination, consideration shall be given to drainage, climate, topography, proximity to market, and transportation and compatibility to adjoining land use, among other considerations. "Dairy" as used for disposition purposes means a "dry lot" dairy without allowance for grazing.

(B) Second class--Lands suitable for special livestock uses, but inferior to those of first class.

3. Pasture use

(A) First class--Lands having a potentially high economic animal unit carrying capacity and capable of correspondingly high liveweight gains per acre per year, such as, less than five acres per animal unit per year and more than one hundred pounds live beef gains per animal unit per acre per year.

(B) Second class--Lands having a potentially medium economic animal unit carrying capacity and capable of moderate liveweight gains per acre per year, such as, five to twenty acres per animal unit per year and twenty to one hundred pounds live beef gains per animal unit per acre per year.

(C) Third class--Lands having a relatively low animal unit carrying capacity and producing correspondingly low liveweight gains per acre per year, such as, more than twenty acres per animal unit per year and less than twenty pounds average live beef gains per animal unit per acre per year.

4. Commercial timber use

(A) First class--Lands of high suitability for growth of merchantable timber having mean annual growth potential under normal forest management practices with yields exceeding amounts such as one thousand board feet per acre, and with location and terrain presenting favorable logging, transportation, and marketing conditions.

(B) Second class--Lands of high suitability for growth of merchantable timber having mean annual growth potential under normal forest management practices with yields exceeding amounts such as one thousand board feet per acre, and with location and terrain presenting less favorable logging, transportation, and marketing conditions.

(C) Third class--Lands of medium suitability for growth of merchantable timber having mean annual growth potential in amounts such as five hundred to one thousand board feet per acre under normal forest management practices, and with location and terrain presenting favorable logging, transportation, and marketing conditions.

(D) Fourth class--Lands of medium suitability for growth of merchantable timber having mean annual growth potential in amounts such as five hundred to one thousand board feet per acre under normal forest management practices, and with location and terrain presenting less favorable logging, transportation, and marketing conditions.

(E) Fifth class--Lands of relatively low suitability for growth of merchantable timber having mean annual growth potential less than an amount such as five hundred board feet per acre, and with location and terrain presenting favorable logging, transportation, and marketing conditions.

(F) Sixth class--Lands of relatively low suitability for growth of merchantable timber having mean annual growth potential less than an amount such as five hundred board feet per acre, and with location and terrain presenting less favorable logging, transportation, and marketing conditions.

5. Quarry use

Lands having sufficient quantity and quality of rock, gravel, and sand for purpose of commercial use.

6. Mining use

Lands bearing sufficient quantity and quality of mineral products for purpose of commercial mining and use.

7. Recreational use

Lands suitable for use and development as parks, playgrounds, historical sites, natural area, camp grounds, wildlife refuge, scenic sites, and other such uses.

8. Watershed use

Lands suitable for the use and development as watersheds or for the development of water, and requiring necessary restrictions on other uses.

9. Residential use

Lands suitable and economically feasible for residential development and use.

10. Commercial and industrial use

Lands suitable and economically feasible for commercial and industrial development and use.

11. Hotel, apartment, and motel use

Lands suitable and economically feasible for hotel, apartment, and motel development and use.

12. Resort use

Lands suitable and economically feasible for resort development and use.

13. Unclassified uses

Lands not otherwise classifiable under the foregoing sections."

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 accessory to 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~~]:

(A) Buildings or sites of historic or scenic interest; and

(B) Walls, terraces, or supporting structure for loi taro fields in wetland taro cultivation before statehood and currently in use for wetland taro cultivation;

(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 small 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 "small wireless facilities" shall have the same meaning as in section 206N-2; 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;

(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;

(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;

(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; or

(24) Notwithstanding any other law to the contrary, composting and co-composting operations; provided that operations that process their own green waste and do not require permits from the department of health shall use the finished composting product only on the operation's own premises to minimize the potential spread of invasive species."

SECTION 5. Section 206-7, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) In declaring development areas, and acquiring land therein, the board of land and natural resources shall avoid disturbing existing uses that are in accord with the highest use permitted under any existing zoning ordinance in the political subdivision concerned. The board shall not disturb existing ancient taro-growing systems, ancient wetland taro lands, or structural elements of ancient wetland taro-growing systems on undeveloped lands used for wetland taro cultivation before statehood and currently in use for wetland taro cultivation.

(b) The board shall not acquire for development projects:

(1) Lands already developed and improved as business or industrial areas where use of the lands for residential purposes or as a part of a development project would be economically unsound or where an undue hardship would be suffered by the community through loss of service because of the acquisition;

(2) Lands already in use for residential purposes by the owner thereof or by a lessee holding a lease with an original term of twenty years or more, except where the acquisition of parts of the lands is reasonably necessary for the proper development of a project, but in no case shall any part of the lands be taken where the taking will reduce the parcel to less than three acres in extent;

(3) Lands in the process of subdivision and development where the owner or the owner's agent has provided that at least fifty per cent of the lots to be sold shall be sold in fee simple, prepared subdivision and construction plans, arranged for financing, and applied to government agencies and otherwise taken steps that may be appropriate for the construction of the proposed development in good faith and filed an affidavit with the board to that effect; [or]

(4) Lands used or to be used as sites for churches, private or parochial schools, clubs, meeting houses, or other private uses of a community, civic, social, or religious nature; or

(5) Undeveloped lands and infrastructure used for wetland cultivation before statehood and currently in use for wetland taro cultivation, including ancient wetland taro lands and structural elements of ancient wetland taro-growing systems;

provided that portions of the lands [~~mentioned under paragraphs (1), (2), (3), and (4),~~] described in this subsection, or interests therein, may be taken to provide access and utility easements where no other reasonable means of access or utility easements are available."

SECTION 6. Section 226-7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Planning for the State's economy with regard to agriculture shall be directed towards achievement of the following objectives:

(1) Viability of Hawaii's sugar and pineapple industries[.];

(2) Growth and development of diversified agriculture throughout the State[.];

(3) An agriculture industry that continues to constitute a dynamic and essential component of Hawaii's strategic, economic, and social well-being[.]; and

(4) Growth and perpetuation of traditional Hawaiian crops."

SECTION 7. The land use commission may create an inventory of taro lands, pursuant to chapter 91, Hawaii Revised Statutes, and submit the inventory to the board of land and natural resources for approval. In creating the inventory, the land use commission may consult with the:

(1) Agencies and entities whose representatives served on; and

(2) Former individual members of,

the taro security and purity task force established pursuant to Act 211, Session Laws of Hawaii 2008, as amended by Act 196, Session Laws of Hawaii 2010.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2023.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1498
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII