SB 2371: DAB; Public Utilities Commission; LUC; Counties; Agriculture; Agrivoltaics; Landowners; Beginning Farmers; Reports; Solar Energy Facilities; Renewable Energy; Special Permits

A BILL FOR AN ACT

RELATING TO AGRIVOLTAICS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the State's agricultural lands are a finite and critical resource for local food production, rural livelihoods, and climate resilience.  Recent trends indicate that agricultural lands are under increasing pressure from utility-scale renewable energy development, particularly solar energy facilities.  More than one thousand two hundred acres of agricultural lands with a productivity rating of B and C have already been converted for operational solar projects with another one thousand two hundred acres proposed for conversion.  While existing law requires that a portion of any land used for solar energy facilities be made available for compatible agricultural activities, this requirement has not yielded substantial or sustained agricultural production.

     The legislature further finds that many farmers, especially beginning farmers, face significant barriers to accessing land, infrastructure, and affordable long-term leasing opportunities.  Solar energy facilities constructed on agricultural lands often feature internal roads, fencing, utilities, and security features that make them suitable for concurrent agricultural use when properly designed.  Agrivoltaics, the integration of agricultural production within solar project areas, can expand agricultural opportunities while enabling the State to achieve its renewable energy goals.

     The legislature also finds that a clear statewide standard is needed to ensure that solar development on agricultural lands with a productivity rating of B, C, or D supports commercial agricultural production.  Establishing a strong regulatory framework for agrivoltaics while requiring that beginning farmers receive the first opportunity to lease land primed for agricultural activity within solar project areas will expand agricultural use without diminishing the planning authority of a county or duplicating the State's existing agricultural park programs.  The legislature additionally finds that the department of agriculture and biosecurity is best positioned to establish rules and best practices, verify farmer eligibility, and enforce compliance with agrivoltaics regulations while allowing landowners the flexibility to select farmers and manage operations.

     Accordingly, the purpose of this Act is to:

     (1)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to prioritize lease offers for beginning farmers;

     (2)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to submit an annual agrivoltaics compliance report to the department of agriculture and biosecurity;

     (3)  Authorize the department of agriculture and biosecurity to penalize any landowner that fails to meet agrivoltaics requirements;

     (4)  Authorize the development of solar energy facilities on agricultural lands with productivity ratings of B, C, or D under certain conditions; and

     (5)  Authorize a county planning commission or department to issue special permits for agrivoltaics requirements before the approval of the land use commission under certain conditions.

     SECTION 2.  Chapter 141, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

     "§141-    Agrivoltaics; requirements; reports; rules; penalties; definitions.  (a)  A landowner who offers a lease for an agricultural sub-parcel on a property used for agrivoltaics shall prioritize lease offers for beginning farmers for a period of       days; provided that if no beginning farmer accepts the lease offer during this period, the landowner may offer the lease to a farmer engaged in commercial agricultural production.

     (b)  A landowner who offers a lease for an agricultural sub-parcel on a property used for agrivoltaics shall submit an annual agrivoltaics compliance report to the department.  The agrivoltaics compliance report shall include:

     (1)  Acreage of the property in active commercial production;

     (2)  Identification of any beginning farmers and commercial farmers leasing a sub-parcel;

     (3)  Documentation of agricultural output; and

     (4)  Any periods of noncompliance with this section and any corrective or enforcement actions taken.

     (c)  If the department determines that a landowner is not in compliance with this section or section 205-4.5(a)(21), the department shall issue a written notice to the landowner and allow the landowner a period of four months from the receipt of the written notice to cure the deficiency; provided that if the department determines that the landowner has failed to cure the deficiency within this period, the department may fine the landowner not more than $5,000 per acre per year; provided further that for repeated or substantial violations, the department may:

     (1)  Require the landowner to increase the acreage used for commercial agricultural production;

     (2)  Temporarily suspend compliance certification; or

     (3)  Refer the matter to the county or public utilities commission for consideration of permit modifications.

     (d)  The department, in consultation with the public utilities commission and appropriate county, shall adopt rules pursuant to chapter 91 to carry out the purposes for this section.

     (e)  For the purposes of this section:

     "Agrivoltaics" means the intentional integration of agricultural activities and solar energy generation on the same site to support agricultural operations pursuant to section 205‑4.5(a)(21).

     "Beginning farmer" means a new farm enterprise or person who has not farmed commercially or has been farming for less than       years.

     "Commercial agricultural production" means a commercial agricultural facility or pursuit, that includes, in whole or in part:

     (1)  The care and production of livestock, livestock products, poultry, and poultry products;

     (2)  The care and production of apiary, horticultural, and floricultural products;

     (3)  The planting, cultivating, and harvesting of crops or trees; and

     (4)  Any other activity that is directly associated with agriculture.

     "Department" means the department of agriculture and biosecurity."

     SECTION 3.  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.  For the purposes of this paragraph, "farm dwelling" 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; provided that overnight camps in operation before January 1, 1961, may be approved by special permit;

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

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

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

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

    (11)  Agricultural parks;

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

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

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

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

    (13)  Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; 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 no 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, or D for which a special use permit is granted pursuant to section 205-6; provided that:

          (A)  The area [occupied] under and adjacent to by the solar energy facilities [is also made available for at] and appurtenances shall be:

               (i)  Put into compatible agricultural activities by a farm operation that derives revenue from the sale of the production from agricultural activities as evidenced by the Internal Revenue Service, schedule F (form 1040), profit or loss from farming, and copies delivered to the relevant county planning commission and land use commission; provided further that the filing of schedule F shall be made a condition of special permit approval; and

              (ii)  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 before the date of commencement of commercial generation; [and]

          (C)  Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:

               (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 before the development of the solar energy facility[.]; and

          (D)  For the purposes of this paragraph[, "agricultural activities"]:

               (i)  "Agricultural activities" means the activities described in paragraphs (1) to (3)[;] that meet the State's local food production goals;

              (ii)  "Agrivoltaics" has the same meaning as defined by section 141-  ; and

             (iii)  "Farm operation" has the same meaning as defined by section 165-2;

    (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 4.  Section 205-6, Hawaii Revised Statutes, is amended to read as follows:

     "§205-6  Special permit.  (a)  Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.  Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.  Each county may establish the appropriate fee for processing the special permit petition.  Copies of the special permit petition shall be forwarded to the land use commission, the office of planning and sustainable development, and the department of agriculture and biosecurity for their review and comment.

     (b)  The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur.  The county planning commission shall notify the land use commission and [such] persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

     (c)  The county planning commission may, under [such] protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter.  A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.

     (d)  Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission.  The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant.

     (e)  A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered.

     Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition.  A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

     (f)  Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205‑4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U.

     (g)  Except in a county with a county agriculture designation ordinance, special permits for agrivoltaics may be issued by the respective county planning commission or department before approval by the land use commission.  Special permits may be subject to conditions imposed by the respective county planning commission or department for the purposes of this chapter.  A county may adopt ordinances that impose agrivoltaics requirements in addition to the requirements established pursuant to sections 141-   and 205-4.5(a)(21).

     For the purposes of this subsection, "agrivoltaics" has the same meaning as defined in section 141-  ."

     SECTION 5.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

Report Title:

DAB; Public Utilities Commission; LUC; Counties; Agriculture; Agrivoltaics; Landowners; Beginning Farmers; Reports; Solar Energy Facilities; Renewable Energy; Special Permits

Description:

Requires a landowner leasing agricultural sub-parcels on property used for agrivoltaics to prioritize lease offers for beginning farmers.  Requires a landowner leasing agricultural sub-parcels on property used for agrivoltaics to submit an annual agrivoltaics compliance report to the Department of Agriculture and Biosecurity.  Authorizes DAB to penalize any landowner that fails to meet agrivoltaics requirements.  Authorizes the development of solar energy facilities on agricultural lands with productivity ratings of B, C, or D under certain conditions.  Authorizes a county planning commission to issue special permits for agrivoltaics requirements before the approval of the Land Use Commission under certain conditions.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

relating to agrivoltaics.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the State's agricultural lands are a finite and critical resource for local food production, rural livelihoods, and climate resilience.  Recent trends indicate that agricultural lands are under increasing pressure from utility-scale renewable energy development, particularly solar energy facilities.  More than one thousand two hundred acres of agricultural lands with a productivity rating of B and C have already been converted for operational solar projects with another one thousand two hundred acres proposed for conversion.  While existing law requires that a portion of any land used for solar energy facilities be made available for compatible agricultural activities, this requirement has not yielded substantial or sustained agricultural production.

     The legislature further finds that many farmers, especially beginning farmers, face significant barriers to accessing land, infrastructure, and affordable long-term leasing opportunities.  Solar energy facilities constructed on agricultural lands often feature internal roads, fencing, utilities, and security features that make them suitable for concurrent agricultural use when properly designed.  Agrivoltaics, the integration of agricultural production within solar project areas, can expand agricultural opportunities while enabling the State to achieve its renewable energy goals.

     The legislature also finds that a clear statewide standard is needed to ensure that solar development on agricultural lands with a productivity rating of B, C, or D supports commercial agricultural production.  Establishing a strong regulatory framework for agrivoltaics while requiring that beginning farmers receive the first opportunity to lease land primed for agricultural activity within solar project areas will expand agricultural use without diminishing the planning authority of a county or duplicating the State's existing agricultural park programs.  The legislature additionally finds that the department of agriculture and biosecurity is best positioned to establish rules and best practices, verify farmer eligibility, and enforce compliance with agrivoltaics regulations while allowing landowners the flexibility to select farmers and manage operations.

     Accordingly, the purpose of this Act is to:

     (1)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to prioritize lease offers for beginning farmers;

     (2)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to submit an annual agrivoltaics compliance report to the department of agriculture and biosecurity;

     (3)  Authorize the department of agriculture and biosecurity to penalize any landowner that fails to meet agrivoltaics requirements;

     (4)  Authorize the development of solar energy facilities on agricultural lands with productivity ratings of B, C, or D under certain conditions; and

     (5)  Authorize a county planning commission or department to issue special permits for agrivoltaics requirements before the approval of the land use commission under certain conditions.

     SECTION 2.  Chapter 141, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

     "§141-    Agrivoltaics; requirements; reports; rules; penalties; definitions.  (a)  A landowner who offers a lease for an agricultural sub-parcel on a property used for agrivoltaics shall prioritize lease offers for beginning farmers for a period of       days; provided that if no beginning farmer accepts the lease offer during this period, the landowner may offer the lease to a farmer engaged in commercial agricultural production.

     (b)  A landowner who offers a lease for an agricultural sub-parcel on a property used for agrivoltaics shall submit an annual agrivoltaics compliance report to the department.  The agrivoltaics compliance report shall include:

     (1)  Acreage of the property in active commercial production;

     (2)  Identification of any beginning farmers and commercial farmers leasing a sub-parcel;

     (3)  Documentation of agricultural output; and

     (4)  Any periods of noncompliance with this section and any corrective or enforcement actions taken.

     (c)  If the department determines that a landowner is not in compliance with this section or section 205-4.5(a)(21), the department shall issue a written notice to the landowner and allow the landowner a period of four months from the receipt of the written notice to cure the deficiency; provided that if the department determines that the landowner has failed to cure the deficiency within this period, the department may fine the landowner not more than $5,000 per acre per year; provided further that for repeated or substantial violations, the department may:

     (1)  Require the landowner to increase the acreage used for commercial agricultural production;

     (2)  Temporarily suspend compliance certification; or

     (3)  Refer the matter to the county or public utilities commission for consideration of permit modifications.

     (d)  The department, in consultation with the public utilities commission and appropriate county, shall adopt rules pursuant to chapter 91 to carry out the purposes for this section.

     (e)  As used in this section:

     "Agrivoltaics" means the intentional integration of agricultural activities and solar energy generation on the same site to support agricultural operations pursuant to section 205‑4.5(a)(21).

     "Beginning farmer" means a new farm enterprise or person who has not farmed commercially or has been farming for less than       years.

     "Commercial agricultural production" means a commercial agricultural facility or pursuit conducted, in whole or in part, including:

     (1)  The care and production of livestock, livestock products, poultry, and poultry products;

     (2)  The care and production of apiary, horticultural, and floricultural products;

     (3)  The planting, cultivating, and harvesting of crops or trees; and

     (4)  Any other activity that is directly associated with agriculture.

     "Department" means the department of agriculture and biosecurity."

     SECTION 3.  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.  For the purposes of this paragraph, "farm dwelling" 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; provided that overnight camps in operation before January 1, 1961, may be approved by special permit;

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

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

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

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

    (11)  Agricultural parks;

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

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

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

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

    (13)  Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; 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 no 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] B, C, or D 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;] occupy an area of at least ten acres and have a nameplate capacity of at least five megawatts; provided further that:

               (i)  Not less than thirty per cent of the area occupied by solar energy facilities shall at all times be used for compatible agricultural activities;

              (ii)  The area made available for compatible agricultural activities shall be offered at a lease rate that shall not exceed the prevailing regional agricultural lease rate;

             (iii)  The landowner shall construct and maintain agricultural infrastructure, including access roads, gates, fencing, and utilities necessary for agricultural activities; and

              (iv)  All non-panel areas not used for agricultural activities shall maintain permanent vegetative cover consistent with best management practices to promote soil health pursuant to rules adopted by the department of agriculture and biosecurity under section 141-  ;

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

          (C)  Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:

               (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 before the development of the solar energy facility[.]; and

          (D)  For the purposes of this paragraph[, "agricultural activities"]:

               (i)  "Agricultural activities" means the activities described in paragraphs (1) to (3); and

              (ii)  "Prevailing regional agricultural lease rate" means the lease rate for comparable properties within the region as documented by the landowner;

    (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 4.  Section 205-6, Hawaii Revised Statutes, is amended to read as follows:

     "§205-6  Special permit.  (a)  Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.  Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.  Each county may establish the appropriate fee for processing the special permit petition.  Copies of the special permit petition shall be forwarded to the land use commission, the office of planning and sustainable development, and the department of agriculture and biosecurity for their review and comment.

     (b)  The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur.  The county planning commission shall notify the land use commission and [such] persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

     (c)  The county planning commission may, under [such] protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter.  A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.

     (d)  Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission.  The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant.

     (e)  A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered.

     Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition.  A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

     (f)  Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205‑4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U.

     (g)  Except in a county with a county agriculture designation ordinance, special permits for agrivoltaics may be issued by the respective county planning commission or department before approval by the land use commission.  Special permits may be subject to conditions imposed by the respective county planning commission or department for the purposes of this chapter.  A county may adopt ordinances that impose agrivoltaics requirements in addition to the requirements established pursuant to sections 141-   and 205-4.5(a)(21).

     As used in this subsection, "agrivoltaics" has the same meaning as defined in section 141-  ."

     SECTION 5.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

Report Title:

DAB; Public Utilities Commission; LUC; Counties; Agriculture; Agrivoltaics; Landowners; Beginning Farmers; Reports; Solar Energy Facilities; Renewable Energy; Special Permits

Description:

Requires a landowner leasing agricultural sub-parcels on property used for agrivoltaics to prioritize lease offers for beginning farmers.  Requires a landowner leasing agricultural sub-parcels on property used for agrivoltaics to submit an annual agrivoltaics compliance report to the Department of Agriculture and Biosecurity.  Authorizes DAB to penalize any landowner that fails to meet agrivoltaics requirements.  Authorizes the development of solar energy facilities on agricultural lands with productivity ratings of B, C, or D under certain conditions.  Authorize a county planning commission to issue special permits for agrivoltaics requirements before the approval of the Land Use Commission under certain conditions.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

STAND. COM. REP. NO. 2685

Honolulu, Hawaii

RE:     S.B. No. 2371

        S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Sir:

     Your Committees on Agriculture and Environment, Water, Land, Culture and the Arts, and Energy and Intergovernmental Affairs, to which was referred S.B. No. 2371 entitled:

"A BILL FOR AN ACT RELATING TO AGRIVOLTAICS,"

beg leave to report as follows:

     The purpose and intent of this measure is to

     (1)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to prioritize lease offers for beginning farmers;

     (2)  Require a landowner leasing agricultural sub-parcels on property used for agrivoltaics to submit an annual agrivoltaics compliance report to the Department of Agriculture and Biosecurity;

     (3)  Authorize Department of Agriculture and Biosecurity to penalize any landowner that fails to meet agrivoltaics requirements;

     (4)  Authorize the development of solar energy facilities on agricultural lands with productivity ratings of B, C, or D under certain condition; and

     (5)  Authorize a county planning commission to issue special permits for agrivoltaics requirements before the approval of the Land Use Commission under certain conditions.

     Your Committees received testimony in support of this measure from the Office of Planning and Sustainable Development, Hawaiʻi Farm Bureau, and Hawaiʻi Food+ Policy.

     Your Committees received testimony in opposition to this measure from one individual.

     Your Committees received comments on this measure from the Department of Agriculture and Biosecurity, Hawaii State Energy Office, and Public Utilities Commission.

     Your Committees find that many productive agricultural lands are transitioning to utility-scale renewable energy development, particularly solar energy, which has led to a decrease in agricultural productivity and increase in barriers for beginning farmers to establish their operations.  While existing law requires that a portion of any land used for solar energy facilities be made available for compatible agricultural activities, this requirement has not yielded substantial or sustained agricultural production.  Establishing a strong regulatory framework for agrivoltaics that standardizes and regulates solar development on certain agricultural lands is needed to support commercial agriculture.  Therefore, this measure will support the balance of agricultural productivity against energy feedstock and electric generation on public and private lands across the State.

     Your Committees note the concerns raised in testimony that the elaborate regulatory framework of this measure, in its current form, is overly complex and does not provide flexibility in the event a situation arises where landowners of agricultural lands with solar energy facilities are unable to attract qualified beginning farmers or commercial agricultural producers willing to start farming under and around solar panels, and the substantial penalties for landowners who are found to not be in compliance.  Further, clarification of certain terms could help ensure the compatible agricultural activities generate revenue from the activities occurring on the agricultural land under and around the solar energy facilities and are in furtherance of the State's food production goals to advance agrivoltaics in a way that supports farmers, strengthens local food production, and expands clean energy generation statewide.

     Accordingly, your Committees have amended this measure by:

     (1)  Deleting language that would have established requirements for permitted solar energy facilities regarding acreage, energy production by megawatt, percentage of compatible agricultural activities, and prevailing regional agricultural lease rates;

     (2)  Deleting language that would have required the landowner to construct and maintain agricultural infrastructure necessary for agricultural activities;

     (3)  Deleting language that would have required all non-solar panel areas not used for agricultural activities to maintain permanent vegetative cover;

     (4)  Inserting language that requires land adjacent to and under solar energy facilities be put into compatible agricultural activities by a farm operation that derives revenue from agricultural activities;

     (5)  Restoring language in existing law that specifies permitted solar energy facilities shall be made available for compatible agricultural activities at a lease rate that is at least fifty percent below the fair market rent for comparable properties;

     (6)  Specifying that the term "agricultural activities" means certain activities that meet the State's local food production goals;

     (7)  Inserting language to define the term "farm operation";

     (8)  Deleting language that would have defined the term "prevailing regional agricultural lease rate";

     (9)  Defining the term "agrivoltaics"; and

     (10) Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     Your Committees further request that, should other Committees choose to deliberate on this measure as it moves through the legislative process, that they consider expanding the requirements that landowners leasing agricultural sub-parcels on property used for agrivoltaics prioritize lease offers for all farmers, not just beginning farmers.

     As affirmed by the records of votes of the members of your Committees on Agriculture and Environment, Water, Land, Culture and the Arts, and Energy and Intergovernmental Affairs that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 2371, as amended herein, and recommend that it pass Second Reading in the form attached hereto as S.B. No. 2371, S.D. 1, and be referred to your Committees on Commerce and Consumer Protection and Judiciary.

Respectfully submitted on behalf of the members of the Committees on Agriculture and Environment, Water, Land, Culture and the Arts, and Energy and Intergovernmental Affairs,