Bill Text: HI SB3132 | 2022 | Regular Session | Introduced
Bill Title: Relating To Disposition Of Water Licenses By The Board Of Land And Natural Resources.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-02-08 - The committee(s) on WTL deleted the measure from the public hearing scheduled on 02-11-22 1:10PM; CR 229 & Videoconference. [SB3132 Detail]
Download: Hawaii-2022-SB3132-Introduced.html
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THE SENATE |
S.B. NO. |
3132 |
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THIRTY-FIRST LEGISLATURE, 2022 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO DISPOSITION OF WATER LICENSES BY THE BOARD OF LAND AND NATURAL RESOURCES.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 171-58,
Hawaii Revised Statutes, is amended to read as follows:
"§171-58 Minerals and water rights. (a) Except as provided in this section the right
to any mineral or surface or ground water shall not be included in any lease, agreement,
or sale, this right being reserved to the State; provided that the board may
make provisions in the lease, agreement, or sale, for the payment of just
compensation to the surface owner for improvements taken as a condition
precedent to the exercise by the State of any reserved rights to enter, sever,
and remove minerals or to capture, divert, or impound water.
(b) Disposition of mineral rights shall be in accordance with the laws relating to the disposition of mineral rights enacted or hereafter enacted by the legislature.
(c) Disposition [of] for water [rights]
may be made by [lease] license at public auction or direct
negotiations as provided in this chapter or by permit for temporary use on
a month-to-month basis under those conditions [which] that will
best serve the interests of the State and subject to a maximum term of one year
and other restrictions under the law; provided that [any]:
(1) A license for
water may be disposed of through direct negotiation, without recourse to public
auction, provided that the license rental for water shall be at fair market value
determined by independent appraisal.
Prior to approving a direct license, the board shall publish a request
for interest and request for qualifications notice inviting persons to express their
interest in the license for water and their qualifications as potential licensees. The notice shall be given at least once
statewide and at least once in the county where the land is located and shall
contain:
(A) The
qualifications required of eligible licensees;
(B) A
general description of the land, water, and any improvements on the land appurtenant
to the use of the water;
(C) The
proposed use and amount of the water to be allowed under the license;
(D) The
closing date and manner by which a person shall indicate interest and submit a statement
of qualifications; and
(E) Notice
that a current business plan that shall include the proposed use and amount of the
water, is a prerequisite to participate at the time of auction or direct negotiation,
if applicable, and shall be made a term of the license.
The
board shall, in its sole discretion, determine if any persons have qualified
under the terms of the request for qualifications and shall notify all persons
who expressed interest as to whether they qualified. If the board determines that there is more than
one potential qualified bidder, then the board shall dispose of a license for water by public auction. The board may dispose of a license for water by
direct negotiation, without recourse to public auction, if the board determines
there is no more than one potential qualified bidder or if the board finds that
a public auction will be contrary to the public interest;
(2) In determining the
fair market value for the license rental for water, the following factors may be
considered where appropriate:
(A) The
amount of water diverted or extracted and proposed use of water allowed under
the license;
(B) The
amount of water diverted or extracted in proportion to the amount of water
available from the surface or ground water source;
(C) The
costs of delivery;
(D) The
avoided cost to the licensee of obtaining the water from practicable
alternative sources;
(E) The
net economic benefit to the licensee;
(F) The
value contributed by the licensee for watershed management pursuant to subsection
(e); and
(G) The
rent charged for a revocable permit for the disposition that is the subject of the
license;
(3) If the licensee
does not agree with the fair market value, the board shall have sole discretion
to resolve the dispute, provided such resolution is consistent with the public
trust doctrine;
(4) Any disposition by [lease] license for water shall
be subject to disapproval by the legislature by two-thirds vote of either the
senate or the house of representatives or by majority vote of both in any
regular or special session next following the date of disposition; [provided
further that after] and
(5) After a certain land or water use has been authorized by the
board subsequent to public hearings and conservation district use application approval,
and [environmental impact statement approvals,] is in compliance with
chapter 343, water used in nonpolluting ways, for nonconsumptive purposes because
it is returned to the same stream or other body of water from which it was
drawn, and essentially not affecting the volume and quality of water or biota in
the stream or other body of water, may also be [leased] licensed by
the board with the prior approval of the governor and the prior authorization
of the legislature by concurrent resolution.
(d) Any [lease of] license for water
[rights] shall contain a covenant on the part of the [lessee] licensee
that the [lessee] licensee shall provide from waters [leased]
licensed from the State under the [lease] license or from
any water sources privately owned by the [lessee] licensee to any
farmer
or rancher engaged in irrigated
pasture operations, crop farming, pen feeding operations, or raising of grain and
forage crops, or for those public uses and purposes as may be determined by the
board, at the same rental price paid under the [lease,] license,
plus the proportionate actual costs, as determined by the board, to make these
waters available, so much of the waters as are determined by the board to be
surplus to the [lessee's] licensee's needs and for that minimum
period as the board shall accordingly determine; provided that in lieu of
payment for those waters as the State may take for public uses and purposes the
board may elect to reduce the rental price under the [lease of] license
for water [rights] in proportion to the value of the waters and the
proportionate actual costs of making the waters available. [Subject to the applicable provisions of section
171-37(3), the] The board, at any time during the term of the [lease
of] license for water [rights], may withdraw from waters [leased]
licensed from the State and from sources privately owned by the [lessee]
licensee so much water as it may deem necessary to (1) preserve human
life and (2) preserve animal life, in that order of priority; and that from
waters [leased] licensed from the State, the board, at any
time during the term of the [lease of] license for water [rights],
may also withdraw so much water as it may deem necessary to preserve crops;
provided that payment for the waters shall be made in the same manner as
provided in this section.
(e) Any new [lease of] license for water
[rights] shall [contain a covenant that requires] require
the [lessee] licensee and the department [of land and natural
resources] to jointly develop and implement a watershed management plan[.]
that prioritizes the availability of water resources from forested watersheds.
The board shall not [approve] issue
any new [lease of] license for water [rights] without [the
foregoing covenant or] a watershed management plan[.] and a commitment from the licensee to
assist in implementation of the watershed management plan. The board shall prescribe the minimum content
of a watershed management plan[;] developed pursuant to this section; provided that the
watershed management plan shall require the prevention of the degradation of [surface
water and ground water quality] water resources from forested watersheds
to the extent that degradation can be avoided using reasonable management
practices.
(f) [Upon renewal, any lease of water rights
shall contain a covenant that requires the lessee and the department of land
and natural resources to jointly develop and implement a watershed management
plan. The board shall not renew any lease
of water rights without the foregoing covenant or a watershed management plan. The board shall prescribe the minimum content
of a watershed management plan; provided that the watershed management plan
shall require the prevention of the degradation of surface water and ground
water quality to the extent that degradation can be avoided using reasonable management
practices.] The board shall consult with the commission
on water resource management to determine whether the proposed disposition is consistent
with chapter 174C.
(g) The department [of land and natural
resources] shall notify the department of Hawaiian home lands of its intent
to execute any new [lease, or to renew any existing lease of water rights.]
license for water. After consultation
with affected beneficiaries, these departments shall jointly develop a reservation
of water rights sufficient to support current and future homestead needs. Any [lease of] license for water
[rights or renewal] shall be subject to the rights of the department of
Hawaiian home lands as provided by section 221 of the Hawaiian Homes Commission
Act.
(h) The initial term for a license for water shall
not exceed fifty-five years. The board may
extend the term of the license to the extent necessary to qualify the lessee
for any state or private lending institution loan, private loan guaranteed by
the State, or any loan in which the State and any private lender participates,
or to amortize the cost of substantial improvements to the premises benefitting
from the license of water that are paid for by the lessee without institutional
financing, provided that the aggregate of the initial term and any extension
granted shall not exceed sixty-five years and, after consultation with the commission
on water resource management, the proposed extension is consistent with chapter
174C. Notwithstanding section 171-22, the
board or the chairperson shall not consent to the mortgage of, or the creation of
a security interest in, a license of water.
(i) A public auction shall not be required for a license
for the instream, in-watershed use of water for wetland kalo
cultivation done in a traditional manner.
(j) Prior to the board's approval of a proposed
water
license by direct negotiation or public auction, the department shall provide public notice of
the proposed license agreement by posting on the websites of the department and
the office of the lieutenant governor. The
notice shall also be mailed or electronically delivered to all persons who have
made a timely written request of the department for notice of water license
proposals; the commission on water resource management; the department of
Hawaiian home lands; and the office of Hawaiian affairs. The notice shall provide the opportunity to
submit comments in writing to the department regarding the proposed water
license for a period of no less than thirty days following the date of publication.
Comments received shall be submitted to
the board with the board's consideration of the proposed water license. The public notice shall include the identity
of the licensee, if the license is to be disposed of by direct
negotiation, and the location
and description of the licensed water source, and shall include information
regarding how a copy of the proposed license or draft staff submittal containing
the essential terms and conditions of the proposed license to be presented to
the board can be obtained or inspected. The
notice shall also include:
(1) The length of
the license agreement and license rental for a directly negotiated license, or the upset
price if the license is to be disposed of by public auction, as appraised pursuant to paragraph
(c)(2) and section 171-17;
(2) The amount of water
intended to be diverted or extracted, the proposed use of water allowed under
the license, and the amount of water available from the surface or ground water
source;
(3) The known
stream flow data of each stream to be affected by the license and the interim or
permanent instream flow standard;
(4) Information
regarding how water diversion or extraction and use will be monitored by the
department or a third party for compliance with license terms, or a statement
that compliance will not be monitored; and
(5) A description of how the public can view any hydrologic, ethnographic, environmental review, and any other reports used in the development of the proposed license."
SECTION 2. This Act does not affect rights and duties that
matured, penalties that were incurred, and proceedings pursuant to chapter 91 that
were begun before its effective date.
SECTION 3. Statutory material to be repealed is bracketed
and stricken. New statutory material is
underscored.
SECTION 4. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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BY REQUEST |
Report Title:
Water License
Description:
Clarifies the conditions and manner in which the Board of Land and Natural Resources may dispose of water by license.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
