Ocean Leasing

Allows for commercial telecommunication uses in ocean leasing.

THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 171-53, Hawaii Revised Statutes, is
 2 amended by amending subsection (c) to read as follows:
 3      "(c)  The board, with the prior approval of the governor and
 4 the prior authorization of the legislature by concurrent
 5 resolution, may lease state submerged lands and lands beneath
 6 tidal waters under the terms, conditions, and restrictions
 7 provided in this chapter; provided that the authorization of the
 8 legislature shall not be required for leases issued under chapter
 9 190D[;], including ocean leasing for commercial telecommunication
10 uses; and provided further that the approval of the governor and
11 authorization of the legislature shall not be required for any
12 grant of easement or lease of state submerged lands or lands
13 beneath tidal waters used for moorings, cables, or pipelines;
14 provided further that this exemption shall not apply to easements
15 for cables used for interisland electrical transmission or slurry
16 pipelines used for transportive materials, mined at sea, or waste
17 products from the processing of the same.
18      The lease shall provide that the lands shall be reclaimed at
19 the expense of the lessee.  Title to the reclaimed lands shall

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 1 remain in the State."
 2      SECTION 2.  Section 190D-3, Hawaii Revised Statutes, is
 3 amended by amending the definition of "commercial lease" to read
 4 as follows:
 5      ""Commercial lease" means a lease of state marine waters or
 6 submerged lands for marine activities designed for profit[.],
 7 including a lease of state marine waters for commercial
 8 telecommunication uses."
 9      SECTION 3.  Section 190D-11, Hawaii Revised Statutes, is
10 amended by amending subsection (a) to read as follows:
11      "(a)  Any person desiring to lease state marine waters shall
12 submit to the board an application for specific activities in any
13 specific area or areas.  Applications made pursuant to this
14 chapter shall contain:
15      (1)  An environmental assessment or, if required, an
16           environmental impact statement which shall be prepared
17           and accepted in compliance with the rules adopted under
18           chapter 343;
19      (2)  A description of the location and boundaries of the
20           state marine waters to be used and a description of the
21           nature of the use desired;
22      (3)  A statement of the reasons for selecting the proposed
23           location;

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 1      (4)  A description of the activities to be conducted,
 2           including a specification as to whether such activities
 3           are commercial or noncommercial, a timetable for
 4           construction, deployment, and operation of facilities,
 5           and planned levels of production;
 6      (5)  Where the application is for mariculture, a description
 7           of the species to be cultivated and produced;
 8      (6)  A statement on the extent to which the proposed
 9           activities will interfere with the use of the state
10           marine waters for the purposes of navigation, fishing,
11           and public recreation;
12      (7)  A description of any enclosure, fences, stakes, buoys,
13           or monuments proposed to mark off the desired area;
14      (8)  An initial description of current users (military,
15           governmental, commercial, recreational, and cultural)
16           and their uses of the state marine waters requested for
17           lease, including any practitioners of traditional and
18           customary Hawaiian rights[;] and any leases for
19           commercial telecommunication uses; and
20      (9)  Other information which the board determines to be
21           necessary or appropriate, including financial and
22           technical information."
23      SECTION 4.  Section 190D-22, Hawaii Revised Statutes, is

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 1 amended by amending subsection (a) to read as follows:
 2      "(a)  Any person who wants to obtain a lease for marine
 3 activities in state marine waters, a lease for commercial
 4 telecommunication uses, shall request a lease from the board at
 5 the time of filing an application."
 6      SECTION 5.  Section 190D-23, Hawaii Revised Statutes, is
 7 amended by amending subsection (a) to read as follows:
 8      "(a)  Leases issued by the board shall be drawn up in
 9 accordance with the following requirements, in addition to any
10 other requirements determined by the board:
11      (1)  Each lease shall specify the term of the lease and the
12           nature of the exclusive use of the area being granted;
13      (2)  Each lease shall specify the marine activities or other
14           resources which may be cultivated, produced, harvested,
15           removed, or used pursuant to the lease;
16      (3)  Each lease shall specify an annual rent set by the
17           board for the leased area.  The basic rental charged in
18           a commercial lease may be supplemented by royalty
19           payments.  No royalty shall be charged in a
20           noncommercial lease;
21      (4)  Leases may specify that failure of the lessee to
22           perform substantially the activities for which the
23           lease was granted shall constitute grounds for

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 1           revocation of the lease and forfeiture to the State of
 2           all structures and, in the case of mariculture
 3           activities, all plants or animals cultivated, in and
 4           upon the leased area;
 5      (5)  Each lease shall require that the lessee execute a bond
 6           conditioned upon the substantial performance of the
 7           activities described in the lease.  The amount of the
 8           bond so executed shall be appropriate to the size,
 9           scale, and risk of the activity for which the lease is
10           granted, and shall be sufficient to protect the public
11           interest in the removal of all structures and, in the
12           case of mariculture activities, all marine plants or
13           animals cultivated, as well as to restore or remediate
14           the water and state submerged lands to the satisfaction
15           of the department in and upon the leased state marine
16           waters, if the lease is forfeited for nonperformance or
17           the board requires the removal or eradication of marine
18           plants or animals pursuant to paragraph (11);
19      (6)  Each lease shall specify that if a lessee abandons a
20           leased area, the board may order the removal or sale at
21           public auction of all improvements, assets, marine
22           plants or animals, and equipment remaining in and upon
23           the leased area, and shall transmit to the state

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 1           general fund the entire amount received from any public
 2           auction and any proceeds received from the lessee's
 3           performance bond.  Alternatively, the board may permit
 4           the use of the improvements, assets, marine plants or
 5           animals, and equipment for purposes which benefit the
 6           general public;
 7      (7)  Each lease for mariculture shall specify that the
 8           marine plants or animals described in the lease to be
 9           cultivated and contained within the leased area are the
10           exclusive harvest of the lessee; provided that any
11           marine plant or animal which escapes from the leased
12           area and is not clearly identifiable as the property of
13           the lessee, shall become common property and may be
14           taken or caught by any person, subject to the fishing
15           laws of the State, without violating the rights of the
16           lessee;
17      (8)  Each lease for mariculture shall specify that:
18           (A)  The lessee is responsible for the removal of any
19                cultivated marine plants or animals found outside
20                the leased area but within state marine waters if
21                removal is required to protect the environment or
22                public health and safety, and removal is demanded
23                by the board;

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 1           (B)  The lessee is solely responsible for all costs of
 2                removal of such marine plants or animals; and
 3           (C)  If action must be taken by the department to
 4                eradicate escaped marine plants or animals, all
 5                costs of eradication shall be borne by the lessee;
 6                provided that the costs borne by the lessee shall
 7                be no greater than the amount of the bond required
 8                under paragraph (5);
 9      (9)  Leases may specify that the lessee shall construct and
10           maintain gates, openings, or lanes at reasonable
11           distances from one another throughout a leased area
12           which includes surface waters and in which any type of
13           enclosure is an obstacle to free navigation, unless
14           public transit in or through the enclosed waters will
15           cause undue interference with the operation being
16           conducted by the lessee within the leased area;
17     (10)  Leases may require, where necessary, that:
18           (A)  All lessees mark off the areas under lease by
19                appropriate ranges, monuments, stakes, buoys,
20                fences, or any other devices placed so that they
21                do not interfere unnecessarily with navigation and
22                other traditional uses of the water surface;
23           (B)  All lessees identify the area under lease and the

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 1                names of the lessees on signs appropriately placed
 2                pursuant to specifications established by the
 3                board; and
 4           (C)  All limitations upon the use by the public of an
 5                ocean area under lease shall be clearly posted by
 6                the lessee pursuant to specifications established
 7                by the board;
 8     (11)  Leases shall specify that if the chairperson finds or
 9           has reasonable cause to believe that an activity
10           conducted by the lessee in or upon the area described
11           in the lease is causing an immediate danger to human or
12           marine life or the environment of the state marine
13           waters, the chairperson may direct a temporary or
14           permanent suspension of commercial or research
15           activities in the affected area.  The chairperson shall
16           then notify the board.  The board shall immediately
17           order the lessee or lessees affected by such notice to
18           show cause why their activities should not be
19           terminated, or why any structures, cultivated marine
20           plants or animals, or equipment should not be removed
21           from state marine waters.  The board shall proceed to
22           hold a public hearing and issue its order with respect
23           to such hearing within a reasonable period.  In its

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 1           order following such hearing, the board may direct a
 2           temporary or permanent suspension of commercial or
 3           research activities in the affected area, removal of
 4           equipment or cultivated marine plants or animals, or
 5           such other measures as shall be deemed necessary for
 6           protection of human or marine life and environment of
 7           state marine waters, including forfeiture to and
 8           destruction by the State of any marine plant or animal
 9           species;
10     (12)  Each lease shall specify that the lease may be assigned
11           in whole or in part, or amended, only if the board
12           determines that such assignment or amendment is in the
13           public interest and meets the provisions of this
14           chapter and consents to the assignments.  The board may
15           consent to the mortgage of a lease pursuant to section
16           171-22;
17     (13)  Each lease shall specify that the lease may be revoked
18           by the board for violation of any lease provision.  The
19           board shall deliver a written notice of the breach or
20           default of any lease agreement by registered or
21           certified mail to the party in default and to each
22           holder of record having any security interest in the
23           state marine waters covered by or subject to the lease,

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 1           making demand upon the party to cure or remedy the
 2           breach or default within sixty days from the date of
 3           receipt of the notice.  Upon failure of the party to
 4           cure or remedy the breach or default within sixty days
 5           from the date of receipt of the notice, or within such
 6           additional period the board may allow for good cause,
 7           the board may revoke the lease; and
 8     (14)  Each lease, including a lease for commercial
 9           telecommunication uses, shall contain a statement
10           describing the degree of exclusivity or access to the
11           site by the public that will be based on an analysis of
12           the user listing and descriptions provided in the
13           application, and comments made by the public and in
14           consideration of, but not limited to the following:
15           compatibility of the operation with existing uses,
16           perceived liability to the lessee and the public, and
17           perceived risk to the lessee's investment."
18      SECTION 6.  Statutory material to be repealed is bracketed.
19 New statutory material is underscored.
20      SECTION 7.  This Act shall take effect upon its approval.
22                       INTRODUCED BY:  ___________________________