Report Title:

Coral reef protection

Description:

Creates the coral reef protection act. (HB2831 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2831

TWENTY-FIRST LEGISLATURE, 2002

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to coral reef protection.

 

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

SECTION 1. The legislature finds and declares that:

(1) The State of Hawaii is the most isolated archipelago in the world with the highest proportion of marine endemic species and many valuable and unique coral reef resources, which are highly vulnerable to long-term depletion;

(2) Marine assets should be given the same protections that Hawaii’s unique terrestrial assets have been given through the natural area reserve system;

(3) The natural area reserve system is not designed to protect marine resources with less than one per cent of Hawaii’s coral reef areas currently designated as no-take refuges;

(4) Hawaii’s unique and vulnerable coral reef resources should be protected and preserved to restore historical levels of abundance and to provide ecological baselines against which change can be measured;

(5) The present system of fishing reserves, refuges, public fishing areas, and marine life conservation districts must be strengthened, and additional areas identified as suitable for preservation must be set aside and administered solely and specifically as no-take refuges;

(6) A statewide network of pu`uhonua or refuges should be established to preserve in perpetuity specific coral reef areas which support communities, as relatively unmodified as possible, of the natural flora and fauna, as well as areas of traditional Hawaiian cultural significance; and

(7) A pu`uhonua network is particularly needed to protect the unique, valuable, and fragile marine ecosystems of the Northwestern Hawaiian Islands.

Restricting take-in nursery and spawning grounds and seasons to protect and replenish marine resources has long been a part of traditional, community-based fisheries management in Hawaii. Native Hawaiians were the first to use kapu areas as a management tool. Demonstrated benefits of marine refuges and networks of refuges include:

(1) Long-lasting and often rapid increases in abundance, diversity, and productivity of fish populations;

(2) Increase in fish size and reproductive output within the refuges;

(3) Increase in size and abundance of harvested species in areas adjacent to refuges (spill-over);

(4) Balanced, healthy ecosystems characterized by decreased mortality, decreased habitat destruction, and decreased extinction; and

(5) Sites for collecting valuable fishery-independent data.

Larger refuge sizes result in increased benefits, but even small refuges have positive effects if they are part of a network. Networks of refuges buffer against environmental variability and provide significantly greater protection for marine communities than a single reserve. Refuge networks that span large geographic distances and encompass substantial areas protect against catastrophic events and provide stable platforms for sustainable marine communities in the long term.

Marine refuges, as demonstrated in other areas of the world, can also create economic opportunities that may contribute as much or more to Hawaii’s economy than commercial fishing, such as ecotourism, ocean wilderness tours, scientific research, marine education, recreational snorkeling and diving, underwater photography, and cultural activities. However, it must be noted that even non-extractive uses can alter and damage refuge ecosystems. Since it is usually easier to prevent environmental damage than it is to repair, in the absence of sufficient information on which to base safe and reliable estimates of the effect of an activity, the burden of proof must shift to those proposing activities that may have a negative effect on a pu`uhonua. In accordance with the precautionary approach embodied in the public trust doctrine, an activity may be specifically permitted in the pu`uhonua only after a proposed user has demonstrated with a reasonable degree of certainty that the proposed use will not impose an unacceptable cost or loss to the resource.

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

"Chapter

CORAL REEF PROTECTION ACT

§ -1 Definitions. As used in this chapter:

"Adaptive management" means a management approach that involves assessments of the progress that a pu`uhonua has made toward its stated goals and provides for the adjustment of management actions if goals are not being met or to improve performance.

"Aquatic life" means any type or species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animals that inhabit the marine, brackish, or freshwater environment, and includes any part, product, egg, or offspring thereof, or marine or freshwater plants, including seeds, roots, and other parts thereof.

"Commercial activity" means any activity carried on for a 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.

"Committee" means the pu`uhonua committee established in section    -6.

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

"Ecosystem" means all natural elements, physical and biological, of the habitat or site in which any aquatic life, wildlife, or plant species is found, and upon which it is dependent.

"Fishing" or "to fish" means catching, taking, harvesting, or attempting to catch, take, or harvest, aquatic life. The gathering by hand or the use of a pole, line, hook, net, trap, spear, or other gear which is designed to catch, take, or harvest aquatic life, by any person who is in the water, or 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.

"Kapu" is a restriction or restrictions applied to activities in the pu`uhonua network, in keeping with native Hawaiian natural resources management practices.

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

"Pu`uhonua" means a no-take refuge or a no-take marine reserve.

"Species" includes any subspecies or lower taxa of aquatic life, wildlife, or land plants.

"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.

"Vessel monitoring system" (VMS) means any technologies that allow for satellite-based tracking of, and sometimes communications with, vessels.

"Wildlife" means any undomesticated member of the animal kingdom, whether reared in captivity or not, including any part, product, egg, or offspring thereof, except aquatic life as defined in this section.

§ -2 Hawaii marine refuge system. There shall be a network of statewide marine no-take refuges, hereinafter called the "pu`uhonua", which shall consist of coral reef areas in the State of Hawaii that are designated in the manner hereinafter provided. The pu`uhonua network shall be managed by the department.

§ -3 Powers and duties of the department. (a) To preserve, manage, and protect the pu`uhonua network, the department is authorized, in addition to any other powers, to:

(1) Designate and bring under its control and management, as part of the pu`uhonua network, any area as follows:

(A) State-owned waters, coral reefs, and submerged lands, including all state-owned waters in the Northwestern Hawaiian Islands;

(B) Off-shore islands, islets, atolls, rocks, sandbars, and other protrusions;

(C) Lagoons, embayments, estuaries, and any other appropriate marine or brackish water areas; and

(D) Any other aquatic public trust resource;

(2) Cooperate or contract with any federal, state, or county governmental agency, quasi-governmental agency, community, private organization, or individual in carrying out the purpose of this chapter;

(3) Acquire by gift, devise, grant, or donation any personal property to be used in the acquisition or management, or both, of pu`uhonua areas;

(4) Designate, manage, and protect, after consultation with the pu`uhonua committee and based on the best available scientific and socio-economic data, a network of pu`uhonua areas; and

(5) Prepare and implement the management plan set forth in section -4.

§ -4 Pu`uhonua network and management plans. (a) The department, after consulting the best available scientific data and considering the recommendations of the pu`uhonua committee, shall prepare a comprehensive pu`uhonua network plan and a pu`uhonua management plan based upon such information so as to accomplish the purposes of this chapter.

(b) The pu`uhonua network plan shall:

(1) Clearly identify goals, objectives, and expectations;

(2) Include representative habitat types and biotic communities;

(3) Include the entire variety of habitats in the home ranges of the species;

(4) Encompass lands and waters of sufficient size and number and spread over a large enough geographic area to ensure survival of isolated catastrophic events (twenty to twenty-five per cent of the essential fish habitat);

(5) Permanently protect representative habitats, unique ecological areas, and areas of critical ecological function;

(6) Provide protection for twenty to fifty per cent of the spawning stock necessary to support optimum yield of commercially-caught species;

(7) Protect critical, sensitive, or unique habitats and species; and

(8) Include all state-owned waters in the Northwestern Hawaiian Islands.

(c) The pu'uhonua management plan, in addition to the above, shall:

(1) Develop and implement programs that comprehensively protect, monitor, and enforce the sites;

(2) Accommodate adaptive management of resources that uses feedback from researchers;

(3) Integrate and involve numerous users of the ecosystems in the creation, design, management, and monitoring of the pu`uhonua;

(4) Prohibit commercial activities within the pu`uhonua; and

(5) Prohibit all fishing within the pu`uhonua except as provided in § -5(b).

§    -5 Rules and regulations. (a) The department may, subject to chapter 91, make, amend, and repeal rules governing the use, control, and protection of the areas included within the pu`uhonua network; provided that no rule relating to the permitted use of any area assigned to the pu`uhonua network shall be valid and no use of any area shall be permitted unless the rule or permitted use shall have been specifically approved in writing by a majority of the pu`uhonua committee.

(b) Entrance into and activities within a pu`uhonua requested by applicants seeking to exercise traditional and customary rights and practices compatible with the conservation purposes of the refuge shall be approved by the committee after review and consultation with cultural practitioners.

§    -6 Pu`uhonua committee. (a) There is established within the department of land and natural resources the pu`uhonua committee. The committee shall consist of fifteen members:

(1) One biologist from the division of aquatic resources;

(2) Two biologists from the University of Hawaii;

(3) One biologist from the Hawaiian and Pacific Islands National Wildlife Refuge Complex;

(4) One biologist from the National Ocean Service;

(5) One biologist from the United States Geological Survey;

(6) One biologist from the Bishop Museum;

(7) One biologist from the Hawaii Coral Reef Initiative Research Program;

(8) One biologist from the Hawaii Chapter of the American Fisheries Society;

(9) One representative from Ilioula o` ka lani;

(10) One representative from the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve;

(11) One representative from the marine recreation industry (including fishing);

(12) One representative from the native Hawaiian community; and

(13) Two biologists from nonprofit conservation organizations.

(b) Nongovernmental members shall:

(1) Initially be appointed by the unanimous consent of the director of the Division of Aquatic Resources, the local representative of the United States Fish and Wildlife Service, the local representative of the National Ocean Survey, and the representative from Ilioula o` ka lani; and

(2) Serve for four-year staggered terms, except that three of the first-year members shall serve for two years.

A nongovernmental member shall not serve for more than two consecutive terms. Subsequent replacements for nongovernmental members shall be elected by the committee and serve for four years. Nongovernmental members shall receive no compensation for their services on the committee but shall be entitled to reimbursement for necessary expenses while attending meetings and in the discharge of their duties.

(c) Any action taken by the committee shall be by a simple majority of its members. Eight members of the committee shall constitute a quorum to do business.

(d) The committee shall adopt rules guiding its conduct and shall maintain a record of its activities and actions.

§    -7 Powers and duties of the committee. The committee shall assist the department in the preparation of the pu`uhonua network plan and the pu`uhonua management plan. To accomplish this they shall, inter alia:

(1) Review the best available scientific data on coral reef and other relevant ecosystems, Hawaiian cultural and historical data on all marine resource usage in the Hawaiian archipelago, and other pertinent information;

(2) Recommend to the department needed research and approve proposed research;

(3) Establish criteria to be used in determining areas suitable for inclusion in the pu`uhonua network;

(4) Recommend to the governor and the department specific areas for inclusion in the pu`uhonua network;

(5) Establish policies and criteria regarding the management, protection, kapus, and permitted uses of areas that are part of the pu`uhonua network;

(6) Recommend to the governor and the department a pu`uhonua management plan; and

(7) Advise the governor and the department on any matter relating to the preservation of Hawaii’s unique marine resources, including ways and means of extending and strengthening presently established reserves, refuges, public fishing areas, marine life conservation districts, and sanctuaries.

§ -8 Enforcement. (a) Any employee or agent of the department upon whom the board of land and natural resources has conferred powers of police officers, including the power to serve and execute warrants and arrest offenders, or issue citations throughout the State in all matters relating to the enforcement of and within the pu`uhonua of the law and rules and regulations applicable thereto shall have the authority to enforce any of the provisions of this chapter or any rule adopted thereto.

(b) All permit holders with vessels over forty feet in length in the Northwestern Hawaiian Islands and transiting to and from the Northwestern Hawaiian Islands shall be required to:

    1. Carry an active and approved vessel monitoring system on each vessel; and
    2. Post a $2,000,000 vessel grounding bond.

§    -9 Penalty. (a) Any person who violates any of the laws and rules applicable to the pu`uhonua network, upon conviction thereof, shall be guilty of a misdemeanor and shall be fined not less than $1,000 or imprisoned of not more than one year, or both, for each offense.

(b) Except as otherwise provided by law, the board or its authorized representative by proper delegation is authorized to set, charge, and collect administrative fines or bring legal action to recover administrative fees and costs as documented by receipts or affidavit, including attorneys’ fees and costs; or bring legal action to recover administrative fines, fees, and costs, including attorneys’ fees and costs, or payment for damages for the cost to correct damages resulting from a violation of this chapter or any rule adopted thereunder. The administration fines shall be as follows:

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

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

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

(c) 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 legal action to recover administrative fines and costs against that person. Any civil legal action against a person to recover administrative fines and costs 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.