Report Title:

Marine Resources; Community-based marine Comanagement

Description:

Creates a framework for community-based marine comanagement. Authorizes the department of land and natural resources to designate community-based marine comanagement areas. Encourages the formation of community-based marine comanagement area councils and management plans. Provides for enforcement and penalties for violation of any rule or law applicable to any community-based marine comanagement area.

HOUSE OF REPRESENTATIVES

H.B. NO.

2056

TWENTY-SECOND LEGISLATURE, 2004

 

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.

"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 areas councils and the community-based marine comanaged areas 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.

"Community-based marine comanaged area council" means an organization of residents and resource users who are committed to the creation of a community-based marine comanaged area in their moku and who are drawn from a diverse range of the interested user and conservation groups, affected island communities, scientific researchers, departmental marine ecologists, and other governmental agencies.

"Community-based marine comanaged areas advisory board" means a statewide eleven-member advisory group selected by the division of aquatic resources administrator with marine scientific or marine resource management expertise including at least two fish and coral reef ecologists from the department.

"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.

"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 ahupuaa 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 comanagement areas and carry out fishery management strategies for such areas through administrative rules adopted pursuant to chapter 91 to replenish, restore, and conserve the State's marine resources and ecosystems;

(b) Community-based marine comanagement areas:

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

(2) Shall prohibit degrading activities that adversely affect coral reef species and habitats; 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 the level of protection for those areas does not diminish.

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

(1) Incorporating the support of all interested stakeholders residing with 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 shall facilitate and encourage substantive involvement of the community in resource management decisions and rules for their areas through community-based marine comanaged area councils composed 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 community-based marine comanaged area 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 shall adopt framework rules that will expedite the creation and maintain the effectiveness of community-based marine comanaged areas that shall include:

(1) A process for facilitating the creation of and continuing support for community-based marine comanaged area councils in the mokus of each of the main Hawaiian islands and such subsidiary councils as may be needed;

(2) A description of the process that shall be followed by the community-based marine comanaged area councils to implement this chapter; and

(3) The creation of a statewide community-based marine comanaged area advisory board to assist the community-based marine comanaged area councils and advise the department on the implementation of this chapter.

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

(1) Allow individual community-based marine comanaged area 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, on the 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;

(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;

(7) In consultation with other affected agencies, regulate all local degrading inputs and activities within community-based marine comanaged areas that can have significant ecological impact on its marine resources;

(8) Consider appropriate opportunities for collaboration with local communities and organizations interested in management activities, including monitoring, education, restoration, maintenance, and enforcement;

(9) Cooperate with other state departments, counties, or federal agencies to address land-based threats or any degradation from land-based activities to community-based marine comanaged area resources; and

(10) Coordinate with other state departments, counties, or federal agencies to provide effective education and outreach to the general public regarding management strategies.

(e) Before drafting management rules pertaining to a community-based marine comanaged area, the department shall consult with the statewide community-based marine comanaged areas advisory board and the community-based marine comanaged area council, or, if no council has been established, develop ecosystem based management plans consistent with this chapter with other community and user groups in the moku where the community-based marine comanaged area will be located through a coordinated consultation process.

(f) After consultation with the community-based marine comanaged area council and the statewide community-based marine comanaged areas advisory board or, if no council has been created, through other forms of substantial community input, the department shall complete and submit to the board draft management rules for the community-based marine comanaged area together with the recommendations of the community-based marine comanaged area council.

(g) In accordance with the precautionary approach and the public trust doctrine, the department shall not allow any extractive or nonextractive users to conduct or promote any activities in a community-based marine comanaged area unless the potential user demonstrates to the community-based marine comanaged area council and the department to a reasonable degree of certainty that the proposed use will not degrade the marine resources within a community-based marine comanaged area, considering cumulative impacts from all human activities affecting the area.

(h) 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.

(i) 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.

(j) 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 councils. (a) The community-based marine comanaged area councils shall:

(1) Include members who are committed to the creation of effective community-based marine comanaged areas in their mokus 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) Stakeholder interest groups will be balanced such that no one interest group has the voting power to dominate; and

(3) Members shall not be compensated, other than for travel expenses.

(b) A proposal for the designation of a community-based marine comanaged area and the formation of a community-based marine comanaged area council may be submitted to the department from 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 bylaws 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 community-based marine comanaged area 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.

§ -5 Rules. The department shall adopt rules under chapter 91 incorporating the recommendations of the community-based marine comanaged area councils governing the use, control, and protection of the resources and areas included within community-based marine comanaged areas that are consistent with the letter and spirit of this chapter.

§ -6 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) To ensure that the high biological values associated with the community-based marine comanaged areas are fully protected, it shall be unlawful for any person to:

(1) Degrade any resource in a community-based marine comanaged area, including the water quality of the area, except as allowed by the rules governing that area;

(2) Possess, sell, offer for sale, purchase, import, export, deliver, carry, transport, or ship by any means any resource taken from a community-based marine comanaged area in violation of the statutes and rules governing the area, or any other statute or rule pertaining to the area; or

(3) Possess prohibited gear types in the community-based marine comanaged area.

(c) 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.

§ -7 Penalties. (a) To ensure that biological values associated with a community-based marine comanaged area are fully protected, substantial criminal and civil penalties for violation of the rules of the community-based marine comanaged area are 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.

INTRODUCED BY:

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