Report Title:

Marine Resources; Community-based Marine Comanagement

Description:

Creates a framework for community-based marine comanagement by: (1)Authorizing DLNR to facilitate the creation of community-based marine comanaged areas; (2) Encouraging the formation of community-based marine comanaged area councils and management plans; and (3) Authorizing a statewide community-based marine comanaged area advisory board. (HB2056 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2056

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to community-based marine comanagement.

 

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

SECTION 1. The legislature finds and declares that:

(1) Dramatic declines in the size, number, distribution, and quality of a wide variety of important and desirable native marine species and habitats have been observed by many members of Hawaii's fishing communities and other ocean users around the main Hawaiian islands. This decline has also been documented by agencies and scientists;

(2) The replenishment and sustainable use of Hawaii's marine resources are of vital economic, environmental, cultural, and social importance to the people of Hawaii;

(3) Using the wisdom passed down by kupuna for generations, traditional Hawaiian stewardship practices carefully managed the nearshore resources of ahupuaa and sustained their abundance, imposing wise limitations on harvest, such as prohibiting fishing during spawning seasons or in species' nursery areas;

(4) Hawaii's marine waters and resources, from the lagoons and estuaries to the seaward limits of the State's jurisdiction, are part of the State's public trust resources and must be managed to restore abundance and to maintain long-term sustainability;

(5) Community-based marine comanaged areas have benefited fishing communities through improved fish stocks and catch in the Philippines, Fiji, the Cook Islands, Palau, and Guam. In Mo`omomi, Miloli`i, and west Hawaii, local communities are revitalizing and implementing traditional marine stewardship practices by using the knowledge of cultural practitioners and experienced fishers to teach and engage other fishermen in sustainable subsistence harvest of marine resources;

(6) Traditional fishing practices can maintain the same breeding stock as fully protected marine community-based marine comanaged areas. When the harvest system in these communities is based on social and cultural controls that are strictly enforced, the catch is well over twice that of other regions that are only partially protected or for which there are no controls on fishing;

(7) Many types of communities and marine resource user groups are interested, willing, and able to assist the State in developing an appropriate and effective locally managed marine areas and to take an active stewardship role to create and manage these areas. Regional and local involvement in the comanagement of nearshore marine resources is one of many effective approaches to involving communities and user groups in replenishing Hawaii's marine resources; and

(8) Declining marine resources are often not well-documented or understood until irreversible or severe damage occurs, but damage can be prevented by proactive stewardship. The precautionary approach and the State's public trust responsibilities require the support of community-based marine comanaged areas in the main Hawaiian islands.

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

CHAPTER

COMMUNITY-BASED MARINE COMANAGEMENT

§ -1 Definitions. As used in this chapter unless the context otherwise requires:

"Adaptive management" means a management approach that:

(1) Involves assessments of the progress that a community-based marine comanaged area has made toward its stated goals; and

(2) Provides for the adjustment of management actions to meet goals and improve performance.

"Advisory board" means community-based marine comanaged areas advisory board.

"Aquatic life" means:

(1) Any type or species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animal that inhabits the marine, brackish, or freshwater environment. The term includes any part, product, egg, or offspring thereof; or

(2) Marine or freshwater plants, including seeds, roots, and other parts thereof.

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

"Comanagement" means a system in which state resource managers work with facilitated input from community-based marine comanaged area councils and the community-based marine comanaged area advisory board.

"Commercial activity" means any activity carried on for profit, including every kind of commercial enterprise, recreational activities offered for a fee, and taking or removing any aquatic life, mineral, or vegetation for the purpose of sale.

"Community-based marine comanaged area" means a geographically designated area of state marine waters set aside for the primary purpose of ensuring and promoting high biological productivity, replenishment, and restoration of the historical abundance and diversity of the marine resources and ecosystem, through a comanagement approach that meshes traditional management methods with state management initiatives.

"Council" means community-based marine comanaged area council.

"Department" means the department of land and natural resources.

"Ecologically sustainable" means the activity creates no significant change in habitat, water quality, trophic

, territorial, predator/prey, symbiotic, or other ecosystem characteristic.

"Fishing" or "to fish" means catching, taking, harvesting or attempting to catch, take, or harvest, aquatic life or any other activity that can reasonably be expected to result in the catching, taking, or harvesting of aquatic life. The gathering by hand or the use or possession of a pole, line, hook, net, trap, spear, or other gear that is designed to catch, take, or harvest aquatic life, by any person who is in the water, in a vessel on the water, or on or about the shore where aquatic life can be caught, taken, or harvested, shall be considered to be fishing.

"Main Hawaiian islands" for the purposes of this chapter means the islands of Kauai, Oahu, Molokai, Lanai, Maui, Niihau, Hawaii, and their offshore islets.

"Moku" means a geographical region whose boundaries encompass the lands included in a moku of old Hawaii as indicated on maps published prior to 1900, and may include a combination of moku where appropriate.

"Person" means an individual, corporation, partnership, trust, association, any other private entity, or any officer, employee, agent, department, or instrumentality of the state or federal government, or of any foreign government.

"Precautionary approach" means that, where there are present or potential threats of serious damage to the environment, lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation, and a duty exists to ensure the sustainability of ecosystems for the benefit of future as well as current generations.

"State marine waters" means all waters of the State extending from the upper reaches of the wash of the waves on shore seaward to the limit of the State's police power and management authority, including the United States territorial sea, notwithstanding any law to the contrary.

"Subsistence" means ecologically sustainable harvesting for direct personal or family consumption and not for commercial purposes.

"Traditional and customary practices" means, as provided under article XII, section 7 of the Hawaii Constitution, the "rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights," and as further defined by Hawaii statutes, such as sections 1-1, 7-1, and Hawaii case law.

§ -2 Designation of community-based marine comanagement areas. (a) The department may designate community-based marine comanaged areas and carry out fishery management strategies for such areas to replenish, restore, and conserve the State's marine resources and ecosystems.

(b) Community-based marine comanaged areas:

(1) Shall allow sustainable traditional and customary practices and essential scientific monitoring and research;

(2) Shall not completely prohibit fishing in a community-based marine comanaged area; and

(3) May allow ecologically sustainable and nondegrading activities compatible with the purpose and intent of this chapter.

(c) Existing state-designated marine management areas, including marine life conservation districts, fisheries management areas, bottomfish restricted fishing areas, the marine component of any natural area reserve, wildlife sanctuaries, and other marine reserves and refuges may be included in community-based marine comanaged areas; provided that the level of protection for those areas is not thereby diminished.

§ -3 Powers and duties of the department. (a) The department may facilitate the creation of community-based marine comanaged areas consistent with the goals of:

(1) Incorporating the support of all interested stakeholders residing within the moku region in establishing the creation of a community-based marine comanaged area in their moku by facilitating substantial consultation with communities and user groups; and

(2) Obtaining local and federal sources of funding and funding expertise to support and facilitate the management, staffing, monitoring, and enforcement of the community-based marine comanaged areas in collaboration with other agencies, universities, private foundations, and nongovernmental organizations.

(b) The department may facilitate and encourage substantive involvement of the community in resource management decisions and rules for their areas through councils comprised of representatives of community residents and resource users living in the moku where the community-based marine comanaged areas will be located, including providing:

(1) Focused education and outreach to communities and community groups;

(2) Facilitated assistance with the creation of councils and the holding of their meetings; and

(3) Training for interested community members on how to inventory and monitor marine resources.

(c) The department may prepare and adopt community-based marine comanaged area framework management plans and subsequent individual management plans for each community-based marine comanaged area established that shall:

(1) Allow individual councils flexibility in determining what management methods work best for their areas and incorporate their recommendations into the rules; provided that these are consistent with the requirements of this chapter and any other existing law;

(2) Ensure that the designation of harvest restrictions, management methods, assessment and monitoring techniques, and enforcement measures for each community-based marine comanaged area are based on the best available scientific, social, and economic information, knowledge of traditional practitioners, ocean users, and fishers, and other pertinent information;

(3) Specify goals, objectives, and expectations appropriate to each moku consistent with the goals of this chapter;

(4) Provide for scientific, ecological, and cultural assessment, monitoring, and adaptive management of resources that utilizes feedback from researchers, resource managers, user groups, and affected communities;

(5) Provide for protection within each moku for:

(A) The diversity of representative habitat types and biotic communities;

(B) The entire variety of habitats;

(C) Lands and waters of sufficient size, number, and distribution to ensure survival of important marine resources from isolated catastrophic events;

(D) Unique ecological areas and areas of critical ecological function;

(E) Spawning populations, nursery grounds, and other habitats necessary to support replenishment of species important to subsistence, recreational, and commercial fishing;

(F) Critical, sensitive, endemic, or unique habitats and species; and

(G) Important marine cultural resources and cultural education opportunities; and

(6) Establish and manage community-based marine comanaged areas in the context of other marine resource management tools intended to enhance fishing or to reduce conflicts between user groups.

(d) The department shall obtain the recommendations of the council, or the broadest range of community input if no council exists, in addition to the recommendations of the statewide advisory board, which shall be integrated into any draft management rules for community-based marine comanaged areas to be submitted to the board.

(e) The department shall adopt the precautionary approach in the management of community-based marine comanagement areas.

(f) Every five years after adoption of each community-based marine comanaged area, the department shall review the implementation of the management plan, and its integration with other community-based marine comanaged areas and marine management areas, and submit a report on its findings and recommendations to the board and legislature at least twenty days before the convening of the regular session following the completion of the review period.

(g) Twenty days prior to the convening of each regular session of the legislature, the department shall submit a report to the legislature on the progress to date on implementation of this chapter.

(h) Nothing in this chapter shall be construed to preclude current marine management initiatives or limit existing powers of the department.

§ -4 Community-based marine comanaged area advisory board. A statewide community-based marine comanaged area advisory board is established. The members of the advisory board shall be selected by the division of aquatic resources administrator with marine scientific or marine management expertise, including at least two fish and coral reef ecologists from the department.

§ -5 Community-based marine comanaged area councils. (a) Any council established by the department shall:

(1) Include members who are residents and resource users committed to the creation of effective community-based marine comanaged areas in their moku and who are drawn from a diverse range of the interested stakeholders and affected communities in the moku where the community-based marine comanaged areas will be created, scientific researchers, departmental marine ecologists, and other marine management experts;

(2) Provide for balanced representation of stakeholder interest groups such that no one interest group has the voting power to dominate; and

(3) Not compensate its members other than for travel expenses.

(b) A proposal for the designation of a community-based marine comanaged area and the formation of a council may be submitted to the department by community-based stakeholders, including residents and resource users in the moku where the community-based marine comanaged area will be located. The proposal shall include:

(1) The name of the community organization or group submitting the proposal;

(2) The mission statement and by-laws of the community organization or group;

(3) A list of the members of the community organization or group; and

(4) A description of the location and boundaries of the marine waters and submerged lands proposed for designation as a community-based marine comanaged area.

(c) No less than two years after the date of the acceptance of their proposal, the councils shall provide to the department recommendations for a draft management plan consistent with this chapter, including:

(1) Specific areas to be included in the community-based marine comanaged area, the criteria considered in recommending these sites, and the activities to be allowed, approved, or prohibited;

(2) Management, education, assessment, monitoring, and enforcement programs and potential collaborators or sources of funding; and

(3) Any other recommendations related to enhancing the management of the community-based marine comanaged area and other marine management areas in their moku, including:

(A) Extending or strengthening existing marine management areas or designation of other areas as appropriate categories of marine managed areas to preserve fish replenishment areas, nursery areas, and examples of intact marine ecosystems; and

(B) Reducing conflicts between user groups that affect marine resources.

(d) In making recommendations pursuant to this chapter, the council shall use the criteria for designating community-based marine comanaged areas pursuant to this chapter, and the scientific, ecological, historical, cultural, socioeconomic, and other information relevant to the designation, management, assessment, and monitoring of the community-based marine comanaged area provided by the department.

(e) The council shall coordinate its work with any interested existing governmental, local, regional, moku, ahupuaa, or other entity with a similar mandate and ability to consult with the department on the protection and management of the community-based marine comanaged area's marine resources.

(f) In making recommendations to the department regarding a draft management plan, the council, wherever possible, shall consult with knowledgeable cultural practitioners and affected user groups, and review the best available ecological science and other pertinent information.

§ -6 Rules. The department may adopt rules under chapter 91 that incorporates the recommendations of the councils, designate community-based marine comanaged areas, govern the use, control, and protection of the resources and areas included within community-based marine comanaged areas and that are consistent with the letter and spirit of this chapter.

§ -7 Enforcement. (a) Any employee or agent of the department upon whom the board has conferred enforcement authority or the powers of police officers shall have the authority to enforce this chapter or any rule adopted thereto.

(b) The department shall seek full and adequate compensation from any person who violates subsection (b) by bringing an administrative, civil, or criminal action to recover the costs of replacing, restoring, or acquiring the equivalent of the community-based marine comanaged area resource, and the value of the lost use of the resource pending its restoration or replacement or the acquisition of an equivalent community-based marine comanaged area resource, including any enforcement action costs, such as investigation and attorneys' fees and costs.

§ -8 Penalties. (a) To ensure that biological values associated with a community-based marine comanaged area are fully protected, criminal and civil penalties for violation of the rules of the community-based marine comanaged area shall be imposed as follows:

(1) Any person who violates any of the laws and rules applicable to any community-based marine comanaged area, upon conviction thereof, shall be guilty of a misdemeanor and shall be fined not less than $1,000;

(2) Except as otherwise provided by law, the department shall set, charge, and collect administrative fines for violations of this chapter, as follows:

(A) For a first violation, a fine of not more than $2,500;

(B) For a second violation within five years of a previous violation, a fine of not more than $5,000; and

(C) For a third or subsequent violation within five years of the last violation, a fine of not more than $10,000.

(b) Any criminal action against a person for any violation of this chapter or any rule adopted thereunder shall not be deemed to preclude the State from pursuing civil or administrative action to recover the costs of damages to community-based marine comanaged area resources and any associated administrative and enforcement costs. Any civil or administrative action against a person for any violation of this chapter or any rule adopted thereunder shall not be deemed to preclude the State from pursuing any criminal action against that person."

SECTION 3. This Act shall take effect upon its approval.