~--~-:;? • . • X i . ,-- r .· , • ·. ! I - n water Resource Associates ; '·=- · · ·' · :. "' 1124 Fort st. Mall, Suite 212 ,._.] ...

26 .

Honolulu, Hawaii 96813 , :; ,; : L". Y A 8 . 3 2 Tel: <808) 528-0074 Fax: (808> 528-0808

1:, '· \), .· .\; 1.1~ (\ I · ... -,; , .. _,J,. ~· . .. ...... '4 • '-- ·- ;j I 1Lf I

INVOICE

TO: Division of water and Land Development P.O. Box 373 Honolulu, HI 96809

Update of Geothermal Rules 183 and 184

Recapitulation Sheet attached

CirQ.cl.!!e ~~!.Jo'.~~---~-FI-NA-L-- f :..:.:::..---·------

INVOICE NO.

2-8293

INVOICE DATE

5-24-93

$4,512.50

SUBTOTAL >. $4,512.50

TAX 4% 180.50 $4,693.00

... • • Water Resource Associates

RECAPITULATION SHEET

Date: May 24, 1993

Payment Request No.: 2 Purchase Order No. C 1 0 19 5

Project: Update of Geothermal Rules

Basic Services:

Amount Previous Phase Contract % Earned Payments Amount

Amount Comp to Date received* Due

Review and study: Adm. Rules 183 and 184, legislative acts, etc. Submit draft of Amended Rules 183 and 184. $20,000 95% $19,000 $14,250 $4,750.00

Sub-total . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . $4,750.00

Less 5% Retention 237.50

$"4,512.50

Plus 4% Tax ....................................... . 180.50

Amount due and payable $4,693.00

*excluding 4% tax

,

··- ·,., y ~ r ~ \ .

JOHN WAIHEE

GOVERNOR OF HAWAII

0

STATE OF HAWAII

WILLIAM W. PATY, CHAIRPERSON

BOARD OF LAND AND NATURAL RESOURCES

ccJo; t/'-L+ :JE"I"ES +~\t::±J ~

AQUACULTURE DEVELOPMENT PROGRAM

DEPARTMENT OF LAND AND NATURAL RESOURCES DIVISION OF WATER AND LAND DEVELOPMENT

AQUATIC RESOURCES CONSERVATION AND

ENVIRONMENTAL AFFAIRS CONSERVATION AND

P. 0. BOX 373

HONOLULU, HAWAII 96809

MAR -4 1992

RESOURCES ENFORCEMENT CONVEYANCES FORESTRY AND WILDLIFE LAND MANAGEMENT STATE PARKS WATER AND LAND DEVELOPMENT

Mr. Dan Lum, President Water Resource Associates 1124 Fort Street Mall, Suite 212 Honolulu, Hawaii 96813

Dear Mr. Lum:

Scope of Work for the Update of Geothermal Rules

Your firm has been selected to provide consultant services for the update of two Hawaii Administrative Rules CHAR) entitled, "Chapter 13-183, Leasing and Drilling of Geothermal Resources," and "Chapter 13-184, Designation and Regulation of Geothermal Resource Subzones."

The scope of work shall be, but not limited to the following:

1. Obtain and review:

Chapter 183, Hawaii Revised Statutes (HRS) - Reservation and Disposition of Govbnment Mineral Rights; ,,

Chapter 205, HRS - Land Use Commission: Section 205.5.1, Geothermal Resource Subzones and Section 205.5.2, Designation of Areas as Geothermal Resource Subzones;

' Chapter 13-183, HAR- Rules on Leasing and Drilling of Geothermal Resources;

, Chapter 13-184, HAR- Designation and Regulation of Geothermal Resource Subzones;

· Legislative Reference Bureau's "Hawaii Administrative Rules Drafting Manual . (2nd Edition)"

• • Mr. Dan Lum

MAR ..:. 4 1992 Page 3

2. Obtain and study the following 19 legislative acts as they relate to, amend, or otherwise affect Chapters 13-183 and 13-184, HAR:

Act Year Act Year Act Year Act Year 11 1963 90 1984 290 1986 301 1988 241 1974 226 1985 124 1986 378 1988 135 1978 138 1985 372 1986 207 1990 296 1983 167 1986 336 1987 293 1990 151 1984 187 1986 378 1987

3. Obtain, review and study recommendations in the July 1991 report, "Independent Technical Investigation of the Puna Geothermal Venture Unplanned Steam Release, June 12 and 13, 1991, Puna, Hawaii." Incorporate recommendations on blowout prevention equipment and casing as revisions to the rules.

4. Based on review and study, prepare a draft amending Chapters 13-183 and 13-184 in both standard and Ramseyer formats, as required by the "Hawaii Administrative Rules Drafting Manual," using WordPerfect 5.1.

5. Attend public hearing(s), with DLNR staff, to be held to receive public comment on the proposed revisions.

6. Prepare a final draft, based on review and comment by the Division and the public. Furnish a 3\" diskette containing WordPerfect files.

The above scope of work shall be performed in accordance with the attached "General Requirements for Consultant Services Contracts." The work shall be completed with 120 calendar days from the date of this letter, excluding review time. Please complete and submi't the enclosed recapitulation sheet. '

If you have any questions, please call Mr. Gordon Akita at 587-0227.

AY:lc

Enc. (1) General Requirements for Consultant Services Contract (2) Recapitulation Form (3) Purchase Order No. Cl0195

• GENERAL. REQUIREMENTS

FOR

• CONSULTANT SERVICES CON1RACf

July 6, 1990

1. SCOPE OF SERVICES. The Consultant shall perform the services required in a professional manner using good architectural, engineering and/or geological practices.

2. TIME OF COMPI.EI10N. All work under the contract shall be completed as agreed upon. Time is considered to be of the essence, and the Consultant shall prosecute the work with due efficiency and diligence to complete the work within the specified time. In the event, during the prosecution of the work, that the Consultant finds that he cannot complete the work by the date agreed upon, the Consultant shall submit to the State, prior to the completion date, a request for time extension, citing the reasons for requiring the additional time.

3. AUI1IORITY OF 11-IE CHAIRPERSON. The Chairperson shall decide all questions which may arise as to the manner of performance and progress of the work; all questions as to the acceptable fulfillment of the contract; all questions as to compensation. His decision shall be final. Any dispute or question arising under this contract which is not disposed of by agreement of the parties within thirty (30) days, shall be decided by the Chairperson or his designated representative, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Consultant. The decision of such person shall be final and conclusive. Pending final decision of a dispute hereunder, the Consultant shall proceed diligently with the performance of this contract. ·

4. I.A WS TO BE OBSERVED. The Consultant shall at all times observe and conform to the requirements of all applicable federal, state, and local laws, ordinances, ~des and regulations whi~h in any manner affect the performance of this contract.

. 5.. PROGRESS qF TilE WORK. The Consultant shall begin on the contract immediately upon written notification to proceed. The Consultant shall be available at all times to discuss with representatives of the State the progress of the work being performed. All quesUons. arising during the course of the work which niust be· resolve~ by the ~tate shall. be br;ought to·· the Sta~e's immediate attention by the Consultant. Uimn ·request by the Stat~, a narrative progress report of tlie.major .

:·phases ·or" W()rk bei!Jg ·performed and the· approximate perce.ntage by phases· and the overall perc~ntag~ of wqtk completed shall be submitted by the Consultant. · ·

-1-

•. • • 6. SUSPENSION OR ANNUlMENT OF CoNmACf. The State reserves the right

to suspend indefinitely or completely cancel the contract and the services to be rendered by the Consultant under the terms of the contract upon written notice to the Consultant at any time and for any reason. In the event that the contract is cancelled, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, specifications, sketches, tracings, stencils, photographs and reports prepared by the Consultant shall, at the option of the State, become its property, and the Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and materials.

7. CHANGES. The State may, from time to time, require changes in the contract work to be performed by the Consultant hereunder. Such changes, including any increase (subject to availability of funds) or decrease in the amount of compensation, which are mutually agreed upon by and between the State and the Consultant shall be made only by written supplemental agreement of the parties.

8. EXTRA WORK. Any additional work beyond that required under the scope of work shall be performed by the Consultant when ordered by the Stat~ in writing. Such work shall be performed in accordance with the State's order and will be paid for by the issuance of a separate purchase order. The State shall not be liable for the payment of any additional services without such prior written order.

9. PARTIAL PAYMENT. The Consultant shall be paid the total fee agreed upon which shall constitute full and final compensation for his service hereunder. The Consultant may be paid in monthly installments, provided the following conditions are observed:

a. One original and three copies of invoices shall be submitted to the State specifying in detail the services for which expenditures were incurred and the percentage of completion both of the particular service and of the total performance of this contract.

b. The .ponthly invoices must be supported by accompanying documentation of all expenditures incurred, and a certified statement, that the work under this contract has been performed in conformance with the contract and that the Consultant is" entitled to receive the amount requisition"ed under the terms of the. contract.

c. Ten percent (fO%) of the amounts certified as expended shall be retained by the. State ~ntil final accep~a0ce of .all work to be. performed· under· this ·· contract in. order to !n~ure fult"and satisf~ctory. completion_of.the contract.

. . ... d; . . Payments 'shall be inade in accordance with, and su'bject to. Se~tion. 103-53,.

Hawaii Revised Statutes. ·

-2-

• •• 10. ACCEPTANCE AND FINAL PAYMENT. Final acceptance is stipulated to mean a

written notice to the Consultant advising him of the satisfactory fulfillment of the contract requirementJ. Final payment will only be made after issuance of the notice of acceptance by the Chairperson, and submission by the Consultant of a tax clearance from the Director of Taxation showing that all delinquent taxes levied or accrued under State statutes have been paid in accordance with Section 103-53, Hawaii Revised Statutes. All material prepared by the consultant in the course of the execution of the work under the terms of the agreement, including CADD designs, drawings, data, studies, tracings and specifications, sketches, stencils, models, maps, reports, and other items shall become the sole property of the State and shall be submitted to the State upon completion of the contract. The Consultant shall have no claim for further employment or additional compensation as a result of exercise by the State of its full rights of ownership of these documents and materials.

11. RELEASE OF INFORMATION. The Consultant shall not release any information regarding the project without prior approval of the Chairperson.

12. INTERFSr OF 11-IE OONSULTANf. The Consultant covenants that it presently has no interest and will not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this contract. The Consultant further covenants that in the performance of this contract no person having such interest will be employed.

13. ASSIGNABll.lTY, SUBOONTRACI1NG. The Consultant shall not transfer any interest in this contract, including claims for money due (whether by assignment or novation) except in strict accordance with Section 40-58, Hawaii Revised Statutes.

14. WAIVER. It is expressly understood and agreed that no waiver granted by the State on account of any violation of any covenant, term or condition of this contract shall constitute or be construed in any manner as a waiver of the covenant, term of condition, or the right to enforce the same as to any other or further violation.

15. IND~CATION. The Consultant shall indemnify, defend, and hold harmless the State an(\ its officers, employees and agents from and against any and all claims, suits, actions, damage, and costs of every kind and nature which may be brought for or on account of any injuries, death or damages sustained by any person or property due to the negligent acts ot omissions of the Consultant, ·or any of his officers, employees, subcontractors, assignees or representatives in the performance of this contract. ·

16. RELATIONSHIP OF PAATI:Es. It is expressly understood. and agreed that the Consultan.t Is an indepen·d~nt contr~ctor, .with the authority to control and direct the performance and· details of the work ~nd·. services herein ·contemplated; however, the State retains the general right of in~pection by a designated representative in order to judge,. whether in the State's opinion, such work is being performed by the Consultant in accordance with the terms of this Agreement.

-3-

I

•

Date:

Payment Request No.

Project: Job No.

BASIC SERVICES

Phase

Pre-Schematic Design

Schematic Design

Preliminary Design

Pre-Final Design

Final Design

Bidding Phase

Construction Phase

REIMBURSABLE

Item

• • DEPARTMENT OF LAND AND NATURAL RESOURCES

DIVISION OF WATER AND LAND DEVELOPMENT P. 0. Box 373

Honolulu, Hawaii 96809

RECAPITULATION SHEET

Contract/ Purchase Order No.

Amount PreVIous Contract % Earned Payments

Amount Com~l.. To Date Received

Amount Previous % Earned Payments

Amount Compl. To Date H.ecei ved

------

Amount Due

Amount Due

+.-EXTRA WORK

Extra \Vot·k Ordet· i>lo. 1

Extra Work Ordcl' No. 2

Extra Work Order No. 3

Extra Wot•k Order No. 4

Extra Work Order No. 5

l~nrrr 'l /on

Amount

Amount Prevwus l % Earned Payments Amount Com pl. To Date l~uccivcd l Due

' !

Sub-Total ••••••••••••••• $ _________ __

Less 5% retention •..•..• $

AMOUNT DUE & PAYABLE •••• ~ ===========

• STATE OF.WAII

REQUISITION & PU~HASE ORDER

DEPARTMENT OF LAND AND ~,:ruRAL RESOURCES DWRM ORGANIZATION FUNCTION AND ACTIVITY

NOTICE TO VENDORS Conditions of purchase are listed on the back side of this purchase order. Please read carefully. Payments may be delayed if all steps are not followed.

Water Resource xsm Associates

1124 Fort Street Mall, Suite 212

Honolulu, Hawaii 96813

The State of Hawaii is an EQUAL EMPLOYMENT OPPORTUNITY and AFFIRMATIVE ACTION employer. We encourage the participation of women and minorities in all phases of employment.

OUAN. UNIT DESCRIPTION

Consultant services to revise and update geothermal rules, Chapters 13-183 and 13-184, Hawaii Administrative Rules in accordance with the attached 1) Selection letter dated March 4, 1992, and 2) General Requirements for Consultant Services

Contract dated July 6, 1990.

Cl0195

030392 Date----------------

Deliver Before-------------

DELIVERY ADDRESS

1 ll' i I ·uncl:bo~il St. Room 221. 1\ulanirnoltu Bldg.

Honolulu, HawAU 80813

BILLING ADDRESS

DIVISION OF WATER RESOURCE MANAGEMENT P.O. Box373

Honolulu, Hawai 86809

UNIT PRICE AMOUNT

$20,000.00

587-0228 H'"""""",..---t----, AUTHENTICATED BY: -~~~~~~~~~~~~~~~~~~T~E~L~EP~H~07.N~E--

AY:lc A. Furuuchi DATE AUTHORIZED SIGNATURE

FOR DEPARTMENT USE ONLY

XXXXXXXXXX XX

219917 00

SFX TC F YR APP D OBJECT cc PROJ NO. PH ACT ESTIMATED COST ACTUAL COST M R OPT DEPT DATA

XX XXX X XX XXX XX xxxx xxxx XX XX XX XX XXX XXXXXXXXXXX lXX XXXXXXXXXXXIXXX X xxxxxxxxxxx 01 621 G 92 043 c 7101 0742 000000 po 070 $20,000 00 I

l I I I I I

: I I I I I I I

COPY #1 - VENDOR STATE ACCOUNTING FORM C-Q3 1111 V 1 1QA'l 11:1~\/IC::~n\

Mr. Manabu Tagomori Deputy Director

• F~F Ct. PIED

92JAN?2 P~: 08

!JtV~ OF VIA 1 ER &. lAND De ¥'i..LdPM£NT

Commission on Water Resource Management Department of Land & Natural Resources State of Hawaii Honolulu, Hawaii

Dear Mr. Tagomori:

Update of Geothermal Rules

• January 21, 1992

The following is our proposed scope of work to update the two Hawaii Administrative Rules entitled, "Chapter 13-183, Leasing and Drilling of Geothermal Resources," and "Chapter 13-184, Designation and Regulation of Geothermal Resource Subzones."

Scope of Work

1.

2.

Obtain and review Hawaii Revised Statutes:

Chapter 183, Reservation and Disposition of Government Mineral Rights, and Chapter 205, Land Use Commission:

Section 205.5.1, Geothermal Resource Subzones Section 205.5.2, Designation of Areas as Geothermal Resource

Subzones

Review and study Hawaii Administrative Rules:

Chapter 13-183, Rules on Leasing and Drilling of Geothermal Resources Chapter 13-184, Designation and Regulation of Geothermal Resource

Sub zones

: •• ~1~ • • Mr. Manabu Tagomori -2- January 21, 1992

3. Obtain, compile, and study the following 19 legislative acts as they relate to, amend, or otherwise affect the geothermal administrative rules, Chapters 13-183 and 13-184.

4.

5.

Act Year Act Year

·u 1963 290 1986 241 1974 124 1986 135 1978 372 1987 296 1983 336 1987 151 1984 378 1987

-90 1984 -301 1988 226 1985 378 1988 138 1985 207 1990 i67 1986 293 1990 187 1986

Review and study the Hawaii Administrative Rules Drafting Manual (2nd Edition) in order to properly prepare revisions to the existing Administrative Rules, Chapters 13-183 and 13-184.

Obtain, review and study recommendations in the July 1991 report, "Independent Technical Investigation of the Puna Geothermal Venture Unplanned Steam Release, June 12 and 13, 1991, Puna, Hawaii." Incorporate recommendations on blowout prevention equipment and casing in revisions to the rules.

"'f 0 6. ~and process the two existing geothermal administrative rules (Chaps. 13-7_ ~and 13-183) using WordPerfect 5.1.

... '· 8.

9.

Proofread the WordPerfect copies of the two administrative rules . 7

Study and prepare a draft amending and/or compiling Chapters 13-is21~d Chapter 13-183 in both Standard and Ramseyer formats, as requir~fue Legislative Reference Bureau's "Hawaii Administrative Rules Drafting Manual."

Prepare a fmal draft, based upon a review and comment by the Division. Furnish a 3W' diskette.

Sincerely,

DANLUM

. -- , ..

Amendments to Chapter 13-183 Hawaii Administrative Rules

•

Y Section 13-183-3, Hawaii Administrative Rules, is amended by amending the defmition of "Geothermal resources" to read:

""Geothermal resources" means the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created r l~l-J by, or which may be extracted from the natural heat, and all minerals in solution or other products obtained from naturally heated fluids, brines, associated gases and steam, in whatever form, found below the surface of the earth, but excluding oil, hydrocarbon gas [or].~, other hydrocarbon substances[.] and any water, mineral in Ac.~ 1.o7 solution, or other product obtained from naturally heated fluids, brines, associated gases, and steam, in whatever form, found below the surface of the earth, having a temperature of 150 degrees Fahrenheit or less. and not used for electrical power generation."

2. Section 13-183-3, Hawaii Administrative.Rules, is amended by amending the defmition of "Operator" to read:

""Operator" means any person as defmed herein engaged in drilling, maintaining, operating, producing, or having control or management of any geothermal well and appurtenances or the development of geothermal resources[.] I I"~ aaL -- fY CIY"l ;ri~T- 2, including but not limited to, geothermal research facility, and geothermal production or utilization facilities. including electric power plants. The operator may be the landowner, the lessee, designated operator, or agent of the lessee or holder of rights under an approved operating agreement."

folio;;{: Section 13-183-6, Hawaii Administrative Rules, is amended to read as

"§13-183-6 Right of entry. Any authorized representative or employee of the Ul"l\11\'t'W\.M..

department shall have free access and right of entry to all wells, producing facilities and their appurtenances for the purpose of inspecting or testing wells and equipment and for the purpose of determining compliance with these rules." [Eff. 6/22/81; am

] (Auth: HRS §182-14) (Imp: HRS §182-14)

~ Section 13-183-10, Hawaii Administrative Rules, is amended to read as follows:

• "§13-183-10 Number of permits. [The number of permits shall be in

accordance with and as provided in § 182-8 Haw ali Revised Statutes.] There shall be no limit on the number of geothermal exploration permits that may be granted, unless otherwise authorized by law."[Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-6) '

·/(. Section 13-183-18, Hawaii Administrative Rules, is amended to read as follows:

"§13-183-18 ·'Compliance with applicable laws. The permittee shall be required to comply with the requirements of all federal, state, and applicable county laws, and rules[, and regulations]." [Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-14)

~ as follows:

Section 13-183-19, Hawaii Administrative Rules, is amended to read

"§ 13-183-19 Geothermal mining leases. The board may, in accordance with these rules.~, grant mining leases conveying to the lessee the exclusive rights to drill, ~

' discover, develop, operate, utilize, and sell geothermal resources on state and reserved lands[,] subject, however, to the board's right to issue exploration pennits on the leased land for the sole purpose of evaluating the extent. of geothermal resources existing on adjacent state or reserved land. The board shall set forth the terms and conditions of the mining lease prior to the public auctioning or granting without public auction." [Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-4, 182-5)

-..../ Section 13-183-20, Hawaii Administrative Rules, is amended to read as foHo~

"§13-183-20 [Geothermal resources] State and reserved lands available for leasing. All state and reserved lands shall, at the discretion of the board, be considered available for geothermal mining leases." [Eff. 6(22/81; · am ] (Auth: HRS: §182-14) (Imp: HRS 182-4)

asfo~ Section 13-183-21, Hawaii Administrative Rules, is amended to read

"§13-183-21 Persons eligible to hold leases. Any person as defmed in §13-183-3 [of these rules] shall be eligible [to lease geothermal resources] for a mining lease in state or reserved lands or take or hold an interest therein, unless the person is in arrears in the payment of taxes, rents or other obligations owing the State or any of its political subdivisions." [Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-14)

• • ~ Section 13-183-25, Hawaii Administrative Rules, is amended by

amen~bsection (g) to read as follows:

"(g) Overriding royalty interests in geothermal leases constitute accountable acreage holdings under these rules and shall be based on the percentage of 6verriding royalty multiplied by the acreage involved. If an overriding royalty interest is created which is not shown in the instrument of transfer, a statement shall be filed with the chairperson describing the interest. Any transfer shall be accompanied by a notarized statement that the transferee is a person as defined in these rules and that (their] the person's interests in geothermal leases do not exceed any acreage limitations established. All transfers of overriding royalty interests without a working interest and otherwise not contemplated [by §13-183-25] in this section shall be flled for record in the office of the department in Honolulu within ninety days from the date of execution. The interests do not require approval." [Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-11)

Y' Section 13-183-31, Hawaii Administrative Rules, is amended to read ~fu~: .

"§ 13-183-31 Royalties on geothermal production. (a) The board shall fix the payment of royalties to the State for the utilization of geothermal resources at a rate which will encourage the initial and continued production of such resources. With

SQ.

W~A {t\i-..ll\> {)

t\( L.-('(1) 1

• • to the proposed royalties or surrendered the lease within thirty days after receipt of such notice, the lessee shall conclusively be deemed to have agreed with the terms and conditions. If the lessee files objections and no agreement can be reached between the board and the lessee within a period of not less than sixty days, the lease may be terminated by either party. In no event shall the rate of the royalty' payable exceed twenty percent of the gross value. In addition to the above, the board may also impose a royalty based on a percentage of the net profit, cash bonus, or otherwise.

(b) For the purpose of computing royalties, the [amount or) value of geothermal resources produced shall be determined as the gross proceeds received by

.,the mining lessee from the sale or use of geothermal resources~produced from- the •leased land as measured at the wellhead~ In the event that geothermal production hereunder is not sold to a third party but is used or furnished to a plant owned or controlled by the lessee, the [gross proceeds of the production for purposes of computing royalties shall be that which is reasonably equal to the gross proceeds being paid to other geothermal producers for geothermal resources of like quality and quantity under similar conditions after deducting any and all treating, processing, and transportation costs incurred.) value of geothermal resources produced for the purpose of computing royalties shall be determined to be equal to the gross proceeds received by the mining lessee from the sale of electrical energy produced from the geothermal resource. [In the case of furnished geothermal resources, should the board believe that any stated charges imposed and deducted are excessive or that the stated sales price received by the lessee is unreasonable, the lessee shall, upon thirty days notice, provide the board with evidence that the charges or price or both comply with the above requirement of reasonably equal gross proceeds.] Gross proceeds shall not be deemed to include excise, production, severence, or sales taxes or other taxes imposed on the lessees by reason of the production, severence, or sale of geothermal resources or geothermal by~products.

(c) The rate of royalty to be paid to the State for any geothermal by~ product contained in and extracted from the effluence produced shall be not [less than five percent nor] more than ten percent of the gross proceeds received by the lessee from the sale of any by-product produced under the lease as measured at the wellhead and sold, exchanged, or otherwise disposed of by the lessee, including demineralized or desalted water, after deducting any treating, processing, and transponation costs incurred. No payment of a royalty shall be required on the water if it is used in plant operation for cooling or generation of electric energy or is reinjected into the sub­surface. No royalty shall be paid for geothermal by-products used or consumed by lessee in the production operations. The board may readjust the rate of royalties fur the production of geothermal by-products in the same manner and under the same terms prescribed in subsection (a) herein; provided that the rate of royalty for geothermal by~products payable shall not exceed ten percent of the gross proceeds. Gross proceeds shall not include the taxes described in subsection (b) herein." [Eff. 6/22/81; am ) (Auth: HRS §182-14) (Imp: HRS §§182-7, 182-18)

<to'?.

• • ~ Section 13-183-47, Hawaii Administrative Rules, is amended to read

asfol~ "§13-183-47 Award and execution of leases. (a) The lease offered for bid

shall be awarded to the highest responsible qualified bidder. The board reserves the right to reject any and all bids or waive any defects which will be in the best interest of the State. H the board fails to award the lease within sixty days after the date of the public auction, all bids for that lease will be considered rejected. Deposits on rejected bids shall be returned. Within two days after acceptance by the board of the highest responsible bid, the successful bidder shall pay to the board the amount of the first year's rental bid and the $500 deposit shall be credited against the sum.

ill Any provisions to the contrary notwithstanding, if the person who discovers the mineral discovers it as a result of exploration permitted under section 182-6. and if that person bids at the public auction on the mining lease for the right to mine the discovered mineral and is unsuccessful in obtaining such lease. that person shall be reimbursed by the person submitting the highest bid at public auction for the direct or indirect costs incurred in the exploration of the land, excluding salaries, attome s fees and le al ex enses. The de artment shall have the authorit to revie and approve all expenses and costs that may be reimbursed.

[(b)] .(£.} Three copies of the lease will be sent to the successful bidder wh shall within thirty days from delivery thereof be required to execute and return the , and to file the required bond or bonds. When the three copies of the lease are executed by the successful bidder and returned to the chairperson, the lease will be executed by the authorized officers of the board and a copy will be mailed to the lessee. H the successful bidder fails to execute the lease or otherwise comply with the applicable rules, [their] the successful bidder's deposit will be forfeited." [Eff.

~ili2 1; am tl~a~~~ii~~l~~7-~4~(~J?~~~.l.~.,~~~v~~ t lA-F ,.~ 'f: ,,, .. ,,,,!,, .. ~,rn?'1?1l~-~'~'~'-~~~"'";'~~-&~, .. "'.,~., ·.: . . ·:·~ , . , . . .. 6;~ .... :.,:.;:r.•

1<{ Section 13-183-48, Hawaii Administrative Rules, is amended to read as foMw~

"§13-183-48 Application to board[.): filing fee. Applications for mining lease on reserved lands shall be made to the board in accordance with [§] sections 13-183-38, 13-183-39, 13-183-42 and 13-183-43." [Eff. JUN 22, 1981; am ] (Auth: HRS §182-14) (Imp: HRS §182-5)

V Section 13-183-50, Hawaii Administrative Rules, is amended to read as follfw~

"§ 13-183-50 Approval of leasing without public auction. The board may, by t the vote of two-thirds of its [voting] members[,] to which the board is entitled. may t A:- 13r grant a mining lease on reserved lands to the occupier thereof or the occupier"s assignee of the right to apply for a lease thereof without public auction pursuant to § 182-5, Hawaii Revised Statutes. Any provisions to the contrary notwithstandine. if « A, 1_ ? the board decides that it is appropriate to grant a geothermal mining lease on the f1L.\ "J 1~

·~

• • reserved lands, the surface owner Or the OWner's assignee shall have the firSt right of refusal for a mining leasei however, the granting of a geothermal mining lease does not create the presumption that a geothermal resource subzone will be designated, nor shall geothermal development activities occur on land within the geothermal mining lease until the area is designated a geothermal resource subzone. The board shall determine the annual rental to be paid to the State for the right to develop and utilize the geothermal resources reserved to the state and the royalty on geothermal production as prescribed in §13-183-31. The board may also require the payment of cash bonus, percentage of the net profit, or otherwise." [Eff. 6(22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-5)

~ Section 13-183-66, Hawaii Administrative Rules, is amended to read asfo~

"§13-183-66 Supplementary applications and emergencies. A supplementary application shall be fJ.led with the chairperson if there is any contemplated change in the original approved application. Written approval of the change shall be received from the chairperson before the change of work is started. The operator shall keep the Department informed on a timely basis of any unusual or unexpected subsurface conditions encountered during drilling, casing, or cementing operations. In an emergency or when deemed necessary [by the chairperson,] to protect life, health, and property, and to prevent damage to the environment, ground water. and geothermal resources. the chairperson or his designated representative may give verbal or written approval to the operator to modify his drilling operations or casing pro~rram to carry out the intent and purpose of these rules." [Eff. JUN 22 1981; am

] (Auth: HRS §182-14) (Imp: HRS §18~-14)

· · "\.'\.(' Section 13-183-71, Hawaii Administrative Rules, is amended by amenw{g'subsection (d) to read as follows:

"(d) Surface casing shall be set to a minimum depth of ten percent of the proposed total depth of the well or five hundred feet, whichever is greater. If usable basal ground water is present or reasonably suspected to exist in the area, the depth of L ,..~ the surface casing shall be approved by the chairperson. If subsurface geological, P"' · ·· hydrological, or geothermal conditions are [to be or] known within the vicinity of the area to be drilled, then these conditions shall be used in determining and approving the depth of surface casing. A second string of surface casing may be required if the first string has not been cemented through a sufficient series of low permeability, competent rock formations or a rapidly increasing thermal gradient or rapidly increasing formation pressures are encountered."

~ Section 13-183-72, Hawaii Administrative Rules, is amended to read as fgDt(w~ -

"§13-183-72 Mud return temperature logeing. The temperature of the return drilling mud shall be monitored

1 continuously during drilling of the surface casing

• • portion of the drill hole. Either a continuous temperature monitoring device shall be installed and maintained in [a] working condition, [or the temperature shall be installed and maintained in a working condition,] or the temperature shall be read manually. Return mud or bottom hole temperatures shall be measured and ,entered into the log book after each joint of drill pipe has been drilled down (about every thirty feet)." [Eff. 6/22/81; am J (Auth: HRS §182-14) (Imp: HRS §182-14)

'\..1/ Section 13-183-74, Hawaii Administrative Rules, is amended to read as follo~

"§13-183-74 Blowout-prevention equipment. (a) Blowout-prevention n •. /v,h'll1 equipment ("BOPE") capable of shutting-in the well during any operation shall be (..MV'1l1 installed on the surface casing~ tested~ and [shall be] maintained ready for use at all times to prevent blowouts and to protect life, health. and property. BOPE pressure tests [may] shall be observed by the chairperson or his designated representative on all [exploratory] wells prior to drilling out the shoe of the surface casing. The decision to require and observe BOPE pressure tests on other types of wells shall be made on a well-to-well basis. The chairperson or his designated representative sha~ be contacted in advance of a scheduled pressure test to allow time for travel to the well site to witness the test.

BOPE installations shall include high temperature-rated packing units and ram rubbers if available and shall have a minimum working-pressure rating equal to or greater than the lesser of:

(1) A pressure equal to the product of the depth of the BOPE anchor string in feet times.one psi per foot;

(2) A pressure equal to the rated burst pressure of the BOPE anchor string; or

(3) A pressure equal to 2,000 psi. (b) A BOPE manual to serve as a guide and reference for establishing theh

BOPE requirements of the Department on a well-to-well basis shall be prepared by VI the Department. The manual shall be updated as necesscyy to incorporate , accumulated knowledge and experience. The requirements for blowout-prevention ~~I IV'

equipment shall be subject to re~iew and modification by the chairperson. [The ~ ~ follow~g standards serve as guidelines for preparation of minimum blowout- ~ prevention programs: ~-af.:7 ~

(1) No BOPE is required for known shallow, low temperature, low ~ ,~1 pressure areas where down-hole water temperatures are less than one 0 hundred degrees Celsius at depths less that five hundred feet or where temperatures and pressures are unknown and the proposed depth of drilling is less than five hundred feet.

(2) CLASS 2M BOPE (API CLASS 2M-A or 2M-RE) is required for low pressure areas where known temperatures are above one hundred degrees Celsius at depths less than 2.000 feet, or where subsurface temperatures and pressures are unknown and the proposed depth of drilling is less than 2,000 feet. Equipment shall include:

I I

. I

• • (A) An annular BOPE or pipe-ram/blind-ram BOPE with minimum

working-pressure ratings of 1,000 psi installed on the surface casing so that the well can be shut-in at any time;

(B) Hydraulic and/or manual actuating system; (C) Kelly cock; (D) A fill-up line installed above the BOPE; (E) A kill line installed below the BOPE, leading directly to the

mud pumps and fitted with a valve through which cement could be pumped if necessary; and

(F) A blow-down line fitted with two valves installed below the BOPE. The blow-down line shall be directed in a manner so as to permit containment of produced fluids and to minimize any safety hazard to personnel.

(3) CLASS 3M BOPE (API CLASS 2M-RSRA or EQUIVALENT) is required for medium pressure areas where subsurface pressures are less than 1000 psi or where pressures are unknown and the proposed total depth of the well is greater than 2000 feet. Equipment shall include: (A) Annular. BOPE and pipe-ram/blind-ram BOPE with a minimum

working-pressure rating of 2000 psi installed on the surface casing so that the well can be shut-in at any time and with a double-ram preventer having a mechanical locking device;

(B) A hydraulic actuating system utilizing an accumulator of sufficient, capacity and a high pressure auxiliary backup system equipped with dual controls, one at the driller's station and one at least fifty feet away from the well head;

(C) Kelly cock and standpipe valve; (D) A fill-up line installed above the BOPE; (E) A kill line installed below the BOPE, leading directly to the

mud pumps and fitted with a valve through which cement could be pumped if necessary; and

(F) A blow-down line fitted with two valves installed below the BOPE with blow-down line directed in such a manner as to permit containment of produced fluids and to minimize any safety hazard to personnel.

(4) CLASS 1A BOPE is required in areas where dry steam is known to exist and/or formation pressures are less than hydrostatic and air is used as the drilling medium. Equipment shall include:

(A) A rotating-head installed at the top of the BOPE stack; (B) A pipe-ram/blind-ram BOPE, with a minimum working­

pressure rating of 1,000 psi, installed below the rotating-head so that the well can be shut-in at any time;

(C) A banjo-box steam diversion unit installed below the double­ram BOPE, fitted with a muffler capable of lowering sound emissions to within acceptable standards;

• • (D) A blind-ram BOPE, with a minimum working-pressure rating

of 1,000 psi, installed below the banjo-box so that the well can be shut-in while removing the rotating-head during bit changes;

(E) A gate valve required on fmal casing string to be cemented back to surface, with a minimum working-pressure r-ating of three hundred psi, installed below the blind-ram so that the well can be shut-in after the well has been completed, prior to removal of the BOPE stack;

(F) All ram-type BOPE shall have a hydraulic actuating system utilizing an accumulator of sufficient capacity and a high­pressure backup system, one at the driller's station and the other at least fifty feet away from the well head;

I

(G) Kelly cock and standpipe valves; (H) A kill line installed below the BOPE, leading directly to the

mud pumps and fitted with a valve through which cement could be pumped if necessary; and

(I) A blow-down line fitted with two valves installed below the BOPE. This line shall be directed so as to minimize any safety hazard to personnel. If any portion of a well is drilled using mud, Class 2M BOPE shall be installed on the surface casing so that the well can be shut-in at any time.]" [Eff. 6/22/81; am ] (Auth: HRS §182-14) (Imp: HRS §182-14)

18. Material, except source notes, to be repealed is bracketed. New material is underscored.

19. Additions to update source notes to reflect these amendments are not underscored.

20. These amendments to chapter 13-183, Hawaii Administrative Rules, shall take effect ten days after filing with the Office of the Lieutenant Govermor.

I certify that the foregoing are copies of the rules, drafted iri the Ramseyer format pursuant to the requirements of section 91-4.1, Hawaii Revised Statutes, which were adopted on and filed with the Office of the Lieutenant Governor.

Chairperson of the Board APPROVED AS TO FORM;

Deputy Attorney General

Rules Amending Title 13, Administrative Rules

( Date )

SUMMARY

Chapter 184 is amended ·

• Rules Amending Title 13

Hawaii Administrative Rules

_____ (Date)

• 1. Chapter 184 of Title 13, Hawaii Administrative Rules, entitled

,

"Designation and Regulation of Geothennal Resource Subzones" is amended and compiled to read as follows:

"HAW All ADMINISTRATIVE RULES

TITLE 13

DEPARTMENT OF LAND AND NATURAL RESOURCES

§13-184-1 § 13-184-2 §13-184-2.1 §13-184-3

SUB-TITLE 7. WATER AND LAND DEVELOPMENT

Chapter 184

Designation and Regulation of Geothermal Resource Subzones

Subchapter 1. General

Purpose Definitions Geothermal resource subzone Subzone objectives

Subchapter 2. Designation of Geothermal R~source Subzones

§13-184-4 §13-184-5 § 13-184-6 §13-184-7 § 13-184-8 §13-184-9 § 13-184-10

Board initiated subzone designations Landowner initiated subzone designations Criteria for designation of subzones

· Environmental impact statement not required Notice and public hearings Decision of the board Notification and withdrawal of existing subzones

Subchapter 3. Regulations of Geothennal Resource Subzones

§13-184-11 Administration of subzones

• • §13-184-1

Subchapter 1

General

§13-184-1 Purpose. The purpose of this chapter is to establish guidelines and procedures for the designation and regulation of geothermal resource subzones for (the exploration, discovery, development, and production of geothermal resources for electrical energy production and distribution] geothermal development activities within conservation, agricultural, rural, and urban districts. These guidelines and procedures are intended to assist in designating areas which

z,a(- ~.I ( «)

'$' 4z,titvJ

have potential for geothermal resource development for electrical energy production and direct use applications of geothermal resources, and which have an U At+ z."o acceptable balance of the relationships of geothermal development to uses allowed <;u.t 1 in the land use classifications, to present uses of surrounding lands, to potential benefits and impacts. [Eff. 8/16184; am 9/6/84; am and comp (Auth: HRS §205-5.1) (Imp: HRS §§205-5.1, 205-5.2)

§ 13-184-2 Definitions. As used in this chapter: "Appropriate county authority" means the county planning commission

unless some other agency or body is designated by ordinance of the county council.

"Board" means the board of land and natural resources. "Chairperson" means the chairperson of the board of land and natural

· resources or a designated representative.

]

"Department" means the department of land and natural resources. ... ..... < .~ "Exploratory well" means any well drilled for scientific purposes or tor; ta~

determine the economic viability of a geothermal resource, provided that such J exploratory wells may be flow tested for a maximum duration of eight hours. or longer as may be determined by the chairperson. Any exploratory well that is flow tested shall utilize best available control technology and comply with all other applicable federal. state, and county regulations. Exploratory wells may be permitted outside of a designated geothermal resource subzone. regardless of land z_o("~ ·1

use classification. provided that the activity is limited to exploration only. All applicable state and county permits shall be required to drill such exploratory wells which shall not be exempt from the requirements of the environmental impact statement law, chapter 343, Hawaii Revised Statutes.

"Geothermal development activities" means the exploration, development, or production of electrical energy from geothermal resources[.] and direct use \ Ad3'l~ applications of geothermal resources; provided that within the urban, rural, and \ ~ }.. agricultural land use districts, direct use applications of geothermal'resources shall be permitted both within and outside of areas designated as geothermal resources subzones pursuant to section 205-5.2, Hawaii Revised Statutes, if such direct use

184-2

• • §13-184-2.1

applications are in conformance with all other applicable state and county land use regulations and are in conformance with· this chapter.

"Geothermal resources" means the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created by, or which may be extracted from such natural heat, and all minerals in 'solution or other products obtained from naturally heated fluids, brines, [steam and] associated gases, and steam, in whatever form, found below the surface of the Su} lSi~$-) earth[.], but excluding oil, hydrocarbon gas, other hydrocarbon substances, and any water, mineral in solution, or other product obtained from naturally hearted fluids, At~ ~D1 brines, associated gases, and steam, in whatever form, found below the surface of the earth, having a temperature of 150 degrees Fahrenheit or less, and not used for electrical power generation.

"Geothermal resource subzone" means any area designated by the board as provided in this chapter for [use of geothermal resource exploration, development, ull.:-{.1 (A)

or production, of electrical energy from geothermal resources] geothermal development activities, in addition to those uses permitted in each land district under chapter 205 of the Hawaii Revised Statutes.

["Geothermal mining lease"] "Mining lease" means [a State lease approved and issued by the board in accordance with chapter 182, Hawaii Revised Statutes, and chapter 183 of title 13, Administrative Rules entitled "Rules on Leasing and Drilling of Geothermal Resources".] a lease of the right to conduct geothermal operations on State lands or reserved lands to discover, develop, produce, and utilize geothermal resources therein. Unless the context indicates otherwise, "lease", "geothermal lease", or "geothermal mining lease" means "mining lease".

"Operator" means any person as defined herein engaged in drilling, maintaining, operating, producing or [managing] having control or mana!Zement of ~p

3 any geothermal well and appurtenances, or the development of geothermal tc"" I)-I •::>-resources, including but not limited to, geothermal research facility, and geothermal production or utilization [facility] facilities, including electric power plant.§. The Operator may be the landowner, the lessee, desi12:nated operator, or agent of the lessee or holder of rights under an approved operating agreement.

"Special use permit" means a permit issued by the county planning commission for certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. [Eff. 8/16/84; am 9/6/84; am and comp ] (Auth: HRS

. §205-5.1) (Imp: HRS §§205-5.1,.205~5.2))f'..·-:._·,-_ ..... \

§ 13-184-2.1 Geothermal resource subzones. Geothermal resource subzones may be designated within the urban, rural, agricultural and conservation land use districts established under section 205-2, Hawaii Revised Statutes. Only those areas designated as geothermal resources subzones may be utilized for geothermal development activities in addition to those uses permitted in each land use district under chapter 205, Hawaii Revised Statutes[.], provided that direct use

184-3

• • § 13-184-2.1

applications within urban, rural, and agricultural land use districts, and exploration activity including the drilling of exploratory wells, shall be permitted both within and outside of areas designated as geothennal resources subzones. Geothennal development activities may be permitted within urban, rural, agricultural, and conservation land use districts in accordance with chapter 205, Hawaii Revised Statutes, rules of appropriate county authority, and these administrative rules.

The board shall have the responsibility for designating areas as geothermal resource subzones, [except] provided that the total area within an agricultural district which is the subject of a geothennal mining lease approved by the board, and any part or all of which area is the subject of a special use pennit issued by the county for geothennal development activities, on or before May 25, 1984, is [hereby] designated as a geothennal resource subzone for the duration of the lease.

The authority of the board to designate geothennal resource subzones shall be an exception to those provisions of chapter 205, Hawaii Revised Statutes, and of section 46-4, Hawaii Revised Statutes, authorizing the land use commission and the counties to establish and modify land use districts and to regulate uses therein.

[The provisions of these administrative rules] This chapter shall not abrogate nor supersede [the provisions of] chapters 182[, entitled "reservation and disposition of government mineral rights"] and 183, [entitled "forest reservations, water development, zoning",] Hawaii Revised Statutes, and chapter [ 183 of title 13, department administrative rules entitled "rules on leasing and drilling of geothermal resources".] 13-183. [Eff. 9/6/84; am and comp ] (Auth: HRS §205-5.1) (Imp. HRS §§205-5.1, 205-5.2)

§ 13-184-3 Subzone objectives. The establishment and regulation of geothermal resource subzones is intended to facilitate geothermal development activities in those areas of the State where such activities will serve, in overall perspective, the best interest of the State, premised upon the criteria set forth in section 13-184-6. The major objectives are:

(1) To allow geothermal development activities to help achieve the

(2)

(3)

State's goal of energy self-sufficiency and broaden the State's ecoriomic base through development of a natural resource; · To allow geothermal development activities in areas where such activities would be of greater benefit to the State than the existing or future use of such areas; and To allow geothermal development activities in areas of the State which best demonstrate an acceptable balance among the criteria set forth in §13-184-6.

~Th,is ... ch~pt~~sit-ai(iiot.appi£to -any-geother~al-developme~t .a~tivides~~~a~e n'June" 14 ·"1983 rovided that an ex anston of such acttvtttes shall be earned ufin"compliance with its provisions. [Eff. 8/16/84; am 9/6/84; am and comp.

. ] (Auth: HRS §§205-5.1, 205-5.2) (Imp: HRS §§205-5.1, 205-5.2)

184-4

• • § 13-184-5

Subchapter 2

Designation of Geothennal Resource Subzones

§ 13-184-4 Board initiated subzone designation. Beginning in 1983, and prior to the designation of any area as a geothennal resource subzone, the board shall fust make or cause to be made a county-by-county assessment of those areas within the State which have potential for geothermal development activities. The methods to be used for making the assessments shall be left to the discretion of the board, provided that the board shall as a minimum consider the criteria set forth in section 13-184-6. The board may in its discretion base its methods for assessment on currently available public infonnation. Where applicable, the board shall consider the objectives, policies and guidelines set forth in part I of chapter

. 205A, Hawaii Revised Statutes, and the provisions of chapter 226, Hawaii Revised Statutes.

The initial county-by-county assessments of areas with geothennal potential shall be revised or updated by the board at least once every five years beginning in 1988, or at any lesser interval of years at the discretion of the board. [Eff. 8/16/84; am 9/6/84; comp ] (Auth: HRS §205-5.1) (Imp: HRS §§205-5.1, 205-5.2)

§ 13-184-5 Landowner initiated subzone designation. In addition to designations initiated by the board, any property owner, State mining lease applicant, geothermal mining lessee, or person with an interest in real property may initiate an application for designation of any area with geothennal potential as a geothennal resource subzone by specifying the area to the board. The application and three copies shall be accompanied by the following infonnation:

(1) Names and addresses of the applicant, operator, owner of the ~ geothermal mine~al rights, and landowner if not the same as the applicant, and the geothermal lease number, if applicable;

(2) Evidence that the applicant is qualified to submit such a petition; (3) An accurate description and map of the area desired to be

designated as a geothennal resource subzone; (4) A statement by applicant of the purpose, justification, and need for

designation; and (5) An assessment report based on the criteria set forth in section 13-

184-6 and any other information to support the proposed designation.

Applications for geothennal resource subzones shall be submitted to the department for approval by the board. Each application shall be accompanied by a filing fee of $100.00. The chairperson shall review the application for completeness and may request additional information deemed necessary to process the application for board approval. The chairperson shall notify the applicant in

184-5

• § 13-184-5

writing of the acceptance of the completed application. Within 180 days of the written notification of acceptance of the application, the board shall publish notice

· of and hold public hearings and render a decision on designating any part or all of the area requested for designation as a geothermal resource subzone. If th,e request for geothermal resource subzone is denied, the board shall state its reason for its decision. If the board fails to hold a hearing and render a decision within 180 days after issuance of the notice of acceptance of the application, the application is deemed approved subject to the conditions of section 13-184-11. [Eff. 8/16/84; am 9/6/84; am and comp ] (Auth: HRS §205-5.2) (Imp: HRS §§ 205-5.1, 205-5.2)

§13-184-6 Criteria for designation of subzones. The bo~d. in designating an area as a geothermal resource subzone, shall be guided by the selection of those areas that can demonstrate an acceptable balance among the criteria set forth below:

(1) (2)

(3)

(4)

(5)

(6)

That the area has potential for geothermal development activities; That there is a known or likely prospect for the utilization of geothermal resources for electrical energy production; That any potential geologic hazards to geothermal production or use in the proposed area are examined; That any environmental or social impacts of the development of geothermal resources within the proposed area be considered; That the compatibility of development and utilization of geothermal resources within the proposed area is considered with other allowed uses within the area and within the surrounding lands; and That the potential benefits to be derived from geothermal development and utilization in the proposed area be in the interest of the county or counties involved and the State as a whole. [Eff. 8/16/84; am 9/6/84; comp ] (Auth: HRS §205-5.2) (Imp: HRS §§205-5.1, 205~5.2)

§13-184-7 Environmental impact statement not required. An environmental impact statement as defined under chapter 343, Hawaii Revised Statutes, shall not be required in assessing any area proposed for designation as a geothermal resource subzone. [Eff. 8/14/84; am 9/6/84; comp

] (Auth: HRS §205-5.2) (Imp: HRS §§ 205-5.1, 205-5.2)

§13-184-8 Notice and public hearings. W When the board or a qualified applicant proposes an area for designation as a geothermal resource subzone, the board shall hold a public hearing in reasonably close proximity to the proposed area and publish a notice of the public hearing setting forth:

(1) A description of the proposed area;

184-6

(2) (3)

• • § 13-184-9

An invitation for public comment; and The date, time, and place of the public hearing where written or oral testimony may be submitted or heard.

[Such] (b) The notice shall be published on three separate days in .a newspaper of general circulation statewide and in the county in which the public hearing is to be held. The fust, publication shall be not less than twenty days before the date set for the hearing. Copies of the notice shall be mailed to [the State]l

ill The state department of [planning and] business. economic development and tourism [and the]~ The planning commission and planning department of the county in which the proposed area is located[. Publication of the notice of 1 public hearing shall be considered sufficient notice to all {

DBGJ> 4-f Adl2tZJY

landowners and persons who might be affected by the proposed 1

designation.]~ \ J(} /).~ All owners of record of real estate within the proposed area; and ,) ~ All owners of real estate within one thousand feet of the exterior boundary of the area being proposed as a geothermal resource ru~~ :

!£l The notification shall be mailed to the owners and addresses as J' shown on the current real property tax rolls at the county real property tax office. Upon such action, the requirement for notification of owners of land is completed. For the purposes of this subsection, notice to one co-owner shall be sufficient notice to all co-owners.

@ The public hearing shall be held before the board and the conduct of the public hearing shall not be delegated to any agent or representative of the board. All persons and agencies shall be afforded the opportunity to submit data, views, and arguments [whether] either orally or in writing. The deparunent of [planning and] business. economic development and tourism and the affected county planning department [shall be permitted to] may appear at the public hearing and make recommendations concerning the proposal to designate an area. J Contested case procedures are not applicable to these hearines. ~A 37(/ [Eff. 8/16/84; am 9/6/84; am and comp ] (Auth: HRS §205-5.2) (Imp: HRS §§205-5.1,205-5.2)

§ 13-184-9 Decision of the board. At the close of the public hearing, the board shall consider all the testimony and after deliberation make a decision to designate any portion, all or none of the proposed area or announce the date on which it will render its decisi~n. The board may designate a proposed area as a geothermal resource subzone only if it finds the proposed area possesses an acceptable balance of the criteria set forth in section 13-184-6. If the board designates an area as a geothermal resource subzone it shall cause a notice of its decision to be published in a newspaper of general circulation statewide and in a newspaper of general circulation in the county in which the area is located and

184-7

• • § 13-184-9

when so published its decision shall be final unless otherwise ruled invalid by a court of appropriate jurisdiction. Upon request, the board shall issue a concise statement of its findings and the principal reasons for its decision to designate a particular area. [Eff. 8/16/84; comp ] (Auth: HRS §205-5.2) (Imp: HRS §§205-5.1, 205-5-2.)

§ 13-184-10 Modification and withdrawal of existing subzones. Modification of the boundaries or the withdrawal of an existing designated geothermal resource subzone may be initiated by the board or by any property owner, State mining lease applicant, geothermal mining lessee, or person with an interest in real property that is within the designated subzone. The procedure for modifying the boundaries or withdrawal of an existing designated geothennal resource subzone shall be conducted pursuant to the provisions of chapter 91, Hawaii Revised Statutes. The board shall withdraw a designation only upon finding by a preponderance of the evidence that the area is no longer suited for designation; provided, however, that within an existing subzone with active geothermal development activities, the area may not be modified or withdrawn. An environmental impact statement as defined under chapter 343, Hawaii Revised Statutes, shall not be required in assessing any modification of the boundaries or withdrawal of subzones. [Eff. 8/16/84; am 9/6/84; comp ] (Auth: HRS §205-5.2) (Imp: HRS §§205-5.1, 205-5.2)

Subchapter 3

Regulation of Geothennal Resource Subzones

§13-184-11 Administration of subzones. !&_Geothermal development activities within a geothennal resource subzone shall be administered as [follows:] provided in this section.

[(1)] ill The use of an area for geothermal development activities within a geothennal resource subzone shall be governed by the board, if [such] those activities lie within a conservation use district. If geothermal development activities are proposed within a co~servation district, then[,] after [receipt] acceptance of a properly filed and completed application, including all required supporting data, the board shall conduct a public hearing [and, upon appropriate request, a contested case hearing pursunat to chapter 91, Hawaii Revised Statutes, to]. Upon appropriate request for mediation from any party who submitted any comment at the public hearing, the board shall appoint a mediator within five days. The board shall require the parties to participate in mediation. The mediator shall not be a member of the board or its staff. The mediation period shall not extend beyond thirty days after the date mediation started. except by

184-8

• • § 13-184-11

order of the board. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator will submit a written recommendation to the board, based upon any mediation agreement reached between the parties for consideration by the board in its final decision. If ihere is no mediation agreement, the board may hold a second public hearing to receive any comment related to the mediation issues. Within ten days after the second public hearing, the board may receive additional written comment on the issues raised at the second public hearing from any party. The board shall consider the comments raised at the second hearing before rendering its final decision. The board shall then determine whether, pursuant to board [regulations,] rules. a conservation district use permit shall be granted to authorize the geothermal development activities described in the application. The board shall grant a conservation district use permit if it finds that the applicant has demonstrated that:

ill The desired uses would not have unreasonable adverse health, environmental. or socio-economic effects on residents or surrounding property;

ill The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers. water, drainage. and police and fire protection: and

ill There are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to in paragraphs (1) and (2) .

.{£1 A decision shall be made by the board within six months (180 days) of the date a complete application is officially accepted. provided that the time limit may be extended by agreement between the applicant and the board.

[(2)] @ The use of an area for geothermal development activities within a geothennal resource subzone shall be governed by both state and county [statutes, ordinances,] laws and rules, if [such] those activities lie within an agricultural, rural, or urban use district; except that land use commission approval or special use pennit procedures which are provided for in section 205-6, Hawaii Revised Statutes, shall not be required for the use of [such] those subzones for geothermal development activities.

In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothennal development activities in an agricultural, rural, or urban district, the appropriate county authority may issue a geothennal resource pennit to allow geothennal development activities. [Such uses as are] Uses pennitted by county general plan and zoning ordinances by the appropriate county authority shall be deemed to be reasonable and to promote the effectiveness and objectives of chapter 205, Hawaii Revised Statutes.

If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal development activities in an agricultural, rural, or urban district, the provisions shall require the appropriate

184-9

• • §13-184-11

county authority to conduct a public hearing [and, upon appropriate request, a contested case hearing pursuant to chapter 91, Hawaii Revised Statutes,] on any application for a geothermal resource permit to determine whether the use is in conformity with the criteria specified in section 205-5.l(e), Hawaii Revisep Statutes, for granting geothermal resource permits[.] ; except that within the urban, rural, and agricultural land use districts. direct use applications of geothermal resources shall be permitted without any application for a geothermal resource permit both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2, Hawaii Revised Statutes. if those direct use applications are in conformance with all other applicable state and county land use

· regulations and are in conformance with this chapter. If geothermal development activities are proposed within agricultural, rural,

or urban districts and [such] those proposed activities are not permitted uses pursuant to county general plan and zoning ordinances, then after [receipt] acceptance of a properly filed and completed application, including all required supporting data, the appropriate county authority shall conduct a public hearing [and, upon]. Upon appropriate request[, a contested case hearing pursuant to chapter 91, Hawaii Revised Statutes, to] for mediation from anv party who submitted comment at the public hearing, the county authoritv shall appoint a mediator within five days. The county authority shall require the parties to participate in mediation. The mediator shall not be an emplovee of any county agency or its staff. The mediation period shall not extend bevond thirty days after mediation has started, except by order of the county authority. Mediation shall be· confined to the issues raised at the public hearing by the panv requesting mediation. The mediator will submit a written recommendation to the county authority, based upon any mediation agreement reached between the parties for consideration by the county authority in its final decision. If there is no mediation agreement, the county authority may have a second public hearimz to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the county authority may receive additional written comment on the issues raised at the second public hearing from any party.

The county authority shall consider the comments raised at the second hearing before rendering its final decision. The county authoritv shall then determine whether a geothermal resource permit shall be granted to authorize the geothermal development activities described in the application. The appropriate county authority shall grant a geothermal resource permit if it finds that applicant has demonstrated [by a preponderance of the evidence] that:

[(a)] ill The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property; [and]

[(b)] ill The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; and

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• • • § 13-184-11

[(c)] ill [That] there are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to [above.] in paragraphs ( 1) and (2) .

.ull Unless there is a mutual agreement to extend, a decision shall be made on the application by the appropriate county authority within [180 days] six months (180 days) of the date a complete application [was filed; provided that if a I.

1 contested case hearing is held, the final permit decision shall be made wi · 270 {;IJA' days of the date a complete application was fJled.] is officiall acce ted· xce t ,....., r that the time limit may be ex tended by agreement between the applicant a appropriate county authority.

ill County issued geothermal resource permits shall not abrogate nor supersede [the provisions of] chapters [177, 178,] 174C, 182, 183, 205A, 226, 342, and 343, Hawaii Revised Statutes, and administrative rules [promulgated] adopted thereunder shall apply as appropriate.

{gl Requests for mediation shall be received by the board or county authority within five days after the close of the initial public hearing. Within five days thereafter, the board or county authority shall appoint a mediator. Any person submitting an appropriate request for mediation shall be notified by the board or county authority of the date, time, and place of the mediation conference by depositing such notice in the mail to the return address stated on the request for mediation. The notice shall be mailed no later than ten days before the start of the mediation conference. The conference shall be held on the island where the public hearing is held.

ill Any decision made by an appropriate county authority or the board pursuant to a public hearing or hearings under this chapter may be appealed directly on the record to the supreme court for final decision and shall not be subject to a contested case hearing. Sections 91-14(b) and (g). Hawaii Revised Statutes. shall govern the appeal. notwithstanding the lack of a contested case hearing on the matter. The appropriate county authority or the board shall provide a court reporter to produce a transcript of the proceedings at all public hearings under this section for purposes of an appeal.

ill For the purposes of an apoeal from a decision from a public hearing, the record shall include but not be limited to:

ill The application for the permit or proposal for subzone designation and all accompanying supporting documents, includinl! but not limited to: reports, studies, affidavits, statements, and exhibits. Staff recommendations submitted to the members of the agency in consideration of the application or proposal. Oral and written public testimony received at the public hearings. Written transcripts of the proceedings at the public hearings. The written recommendation received by the al!ency from the mediator with any mediation agreement. A statement of relevant matters noticed by the al!ency members at the public hearings.

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• § 13-184-11 • •

The written decision of tbe agency issued in connection with the I . .

application or proposal and public hearings. Other documents required by the board or county authority." [Eff. 8/16184; am 9/6/84; am and comp ] (Auth: HRS §§205-5.1, 205-5.2) (Imp: HRS §§205-5.1, 205-5.2)

2. Material, except source notes, to be repealed is bracketed. New material is underscored.

3. Additions to update source notes to reflect these amendments and compilation are not underscored.

4. These amendments to and compilation of chapter 13-184, Hawaii Administrative Rules, shall take effect ten days after filing with the Office of the Lieutenant Governor.

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