Hawaii Marine Reserve Network Act
Creates the Hawaii Marine Reserve Network.
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO MARINE RESERVES.
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 and has one of the highest proportion of marine species that exist nowhere else on earth and many valuable and unique coral reef resources. The replenishment and preservation of these rare resources are of vital economic, environmental, cultural, and social importance to the people of Hawaii to preserve the islands’ marine heritage for residents, visitors, and future generations;
(2) 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. Today, many Hawaiian communities are revitalizing and implementing traditional marine stewardship practices by using the knowledge of cultural practitioners and experienced fishers to engage in sustainable subsistence harvest of marine resources;
(3) The economic value of the coral reef areas in state waters around the main Hawaiian islands is estimated at $10,000,000,000. Hanauma Bay alone as an asset to the State is valued at over $1,000,000,000. Tourists and residents spend $545,000,000 each year on dive and snorkel trips to visit coral reefs in Hawaii. Marine reserves can enhance fishing opportunities and support a diversity of local businesses, including ecotourism, snorkeling, diving, photography, and environmental education;
(4) 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. This decline has also been documented by agencies and scientists. Those who depend on healthy marine ecosystems share a common long-term interest in the vigorous replenishment of fish and other marine species;
(5) Hawaii’s existing highly protected marine areas are important conservation tools, but encompass less than one per cent of Hawaii’s valuable coral reef resources. Hawaii's fishing rules and small patchwork of marine resource management areas have proven insufficient to protect Hawaii’s marine ecosystems and should be reviewed and incorporated into a comprehensive, integrated, and sustainable statewide network of marine reserves;
(6) 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;
(7) Marine reserves are geographically defined areas designated for the lasting protection of natural and cultural resources and managed to promote high biological productivity, biodiversity, and ecosystem integrity. Marine reserves are nationally and internationally recognized as a vital complement to nonspatial management tools for marine conservation;
(8) Marine reserves have benefited fishing communities through improved fish stocks and catch in Australia, Belize, Chile, Ecuador, New Zealand, Philippines, South Africa, the United States, and elsewhere. Recent research indicates that coordinated and integrated networks of reserves of sufficient size, habitat diversity, and geographic area are necessary to ensure adequate long-term sustainability of marine resources;
(9) According to the American Association for the Advancement of the Sciences’ Scientific Consensus Statement on Marine Reserves, the benefits of coordinated networks of marine reserves include:
(A) Facilitating long-lasting and often rapid increases in abundance, diversity, and productivity of fish and other marine species populations, including "spillover" benefits to areas adjacent to the reserves through increased fish size and reproductive abundance;
(B) Supporting baseline and comparative scientific studies, including collection of valuable fishery and other marine species data;
(C) Maximizing balanced and healthy native ecosystems by decreasing mortality, reducing habitat destruction, and protecting against extinction of marine species; and
(D) Insuring against long-term damage from natural and human-caused catastrophic events;
(10) Many communities and marine resource user groups are interested, willing, and able to advise the State in developing an appropriate and effective network of reserves and to take an active stewardship role in partnership with the State to create and manage new and existing marine reserves. Regional and local involvement in the designation and management of nearshore marine resources, such as the west Hawaii regional fishery management area, is one of many effective approaches to involving communities and user groups in replenishing Hawaii’s marine resources;
(11) To sustain abundant marine resources, many diverse governmental, conservation, scientific, and user groups support a national goal of creating marine reserves that will fully protect a minimum of twenty per cent of U.S. coastal waters;
(12) Damage to marine resources is often not well documented or understood until irreversible or severe damage occurs, but damage can be prevented by proactive stewardship. The precautionary principle and the State’s public trust responsibilities require creation of a network of marine reserves in the main Hawaiian islands; and
(13) Similar to the creation of the Hawaii forest reserve system one hundred years ago, which permanently protected about thirty per cent of all state lands to preserve vital supplies of freshwater, the creation of a statewide network of marine reserves in a minimum of twenty per cent of the marine waters of the main Hawaiian islands will provide significant benefits in perpetuity for the people of Hawaii.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
HAWAII MARINES RESERVES NETWORK ACT
§ -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 marine reserve 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.
"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.
"Councils" means the marine stewardship advisory councils established in -4.
"Department" means the department of land and natural resources.
"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 only means the islands of Kauai, Oahu, Molokai, Lanai, Maui, Niihau, and Hawaii.
"Marine reserve" means a highly protected 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, by prohibiting human activities that in any way degrade the reserve.
"Marines reserves network" means a system or series of marine reserves that share significant island or statewide conservation and management goals, criteria, or plans, or are connected by larval dispersal or juvenile or adult migration within a biogeographic region.
"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 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, Hawaii Revised Statutes, and Hawaii case law.
§ -2 Hawaii marines reserves network. (a) To replenish, restore, and conserve the State’s marine resources and ecosystems, the department shall create and manage a statewide marines reserves network by January 1, 2010. The network shall consist of marine reserves encompassing a minimum of twenty per cent of the State’s marine waters around each of the main Hawaiian islands in the manner hereinafter provided in this chapter.
(b) The marine reserves, by rule, regulation, or permit:
(1) Shall allow for traditional and customary practices and for essential scientific monitoring and research;
(2) Shall prohibit degrading consumptive, extractive, commercial, or other activities that adversely affect coral reef species and habitats; and
(3) May allow sustainable and nondegrading activities compatible with the purpose and intent of this chapter.
(c) Existing state-designated marine 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, that are determined by the department to have been designed or are modified to achieve the purposes of the marines reserves network as defined in this chapter shall be included in the network.
§ -3 Powers and duties of the department. (a) The department shall create the marines reserves network by undertaking a phased planning process to ensure substantial annual progress toward the creation of the network, consistent with the goals of:
(1) Facilitating substantial consultation with communities and user groups; and
(2) Obtaining new sources of funding to support the statewide designation process and management, staffing, and monitoring of the marines reserves network.
(b) The department shall adopt a marines reserves network designation process plan, that shall describe the public process for the establishment of the marines reserves network. The designation process plan shall include but shall not be limited to:
(1) A description of the process that shall be followed to implement this chapter;
(2) A proposal for the creation of, funding support for, and consultation with marine stewardship advisory councils on each of the main Hawaiian islands and a statewide coordinating group for the island councils;
(3) A proposal for alternative approaches to proceeding with the creation of the marines reserves network in the event that the department is unable to obtain adequate funding for, or sufficient community interest in, island councils; and
(4) A proposal for obtaining new long-term funding sources for the department to support the costs associated with the designation, management, assessment, and monitoring of the marines reserves network.
(c) Twenty days prior to each session of the legislature, the department shall submit a report to the legislature on the progress to date on implementation of the provisions of this chapter.
(d) After consultation with the marine stewardship advisory councils or, if no such councils have been created, through other forms of substantial community input, by October 1, 2007, or sooner as island plans are developed, the department shall complete and submit to the board the proposed designation plans, each council’s recommendations, and draft rules for the networked marine reserves on an island-by-island basis. The department shall not adopt island plans and regulations that are less restrictive than those recommended by any council.
(e) By January 1, 2010, the department shall have created the statewide marines reserves network through rules.
(f) In accordance with the precautionary approach and the public trust doctrine, the department shall not allow any organized group or commercial users to conduct or promote any activities in or uses of a reserve unless the potential user demonstrates to a reasonable degree of certainty that the proposed use will not degrade the marine resources within the reserve considering cumulative impacts from all human activities affecting the reserve.
(g) Every five years after adoption of each island plan, the department shall review the implementation of the island plan, and its integration with the statewide network, 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.
(h) Nothing in this chapter shall be construed to preclude current marine management initiatives or limit existing powers of the department.
(i) The department shall adopt marine reserve network management plans. In preparing and implementing the marines reserves network management and designation plans, the department shall:
(1) Ensure that the designation, management, assessment, and monitoring of each marine reserve is based on the best available scientific, social, and economic information, on the knowledge of traditional practitioners, ocean users, and fishers, and other pertinent information;
(2) Consult with the marine stewardship advisory councils, or if no such councils are established, develop plans consistent with the provisions for council recommendations in section -4 with other community and user groups through a coordinated consultation process;
(3) Specify goals, objectives, and expectations appropriate to each island, consistent with the goals of this Act;
(4) Provide for scientific and cultural assessment, monitoring, and adaptive management of resources that utilizes feedback from researchers, resource managers, user groups, and affected communities;
(5) Provide on each island, and statewide, protection within the reserves for:
(A) The diversity of representative habitat types and biotic communities;
(B) The entire variety of habitats in the home ranges of key species;
(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) Marine resources that are important for supporting recreational and marine tourism activities
(G) Critical, sensitive, or unique habitats and species; and
(H) Important marine cultural resources and cultural education opportunities.
(6) Establish and manage the marines reserves network in the context of other marine resource management tools intended to enhance fishing or to reduce conflicts between user groups;
(7) Regulate all activities within the reserves that impact marine resources;
(8) Consider appropriate opportunities for collaboration with local communities and organizations interested in management activities, including monitoring, education, restoration, maintenance, and enforcement; and
(9) Cooperate with other state departments, counties, or federal agencies to address land-based threats or any degradation from land-based activities to marine reserve resources.
§ -4 Marine stewardship advisory councils. (a) The marine stewardship advisory councils shall:
(1) Include members who are committed to the creation of the marines reserves network and who are drawn from a diverse range of the interested user and conservation groups, affected island communities, scientific researchers, and governmental agencies; and
(2) Be advisory only, and members shall not be compensated, other than for travel expenses.
(b) The councils shall provide to the department recommendations consistent with this chapter including:
(1) Specific areas to be included in the network, 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 island networks, including:
(A) Extending or strengthening existing designated protected areas or designation of other areas as appropriate categories of marine managed areas to enhance various types of consumptive and non-consumptive uses; and
(B) Reducing conflicts between user groups that affect marine resources.
(c) In making recommendations pursuant to this chapter, the councils shall use the criteria for designating marine reserves pursuant to the chapter, and the historical, cultural, scientific, socioeconomic, and other information relevant to the designation, management, assessment, and monitoring of reserves on each island provided by the department.
(d) The councils shall coordinate their work with any interested existing governmental, local, regional, moku, ahupuaa, or other island entity with a similar mandate and ability to consult with the department on the protection and management of the island’s marine resources.
(e) In making recommendations to the department regarding island plans, the councils shall, wherever possible, consult with knowledgeable cultural practitioners and affected user groups, and review the best available science and other pertinent information.
§ - 5 Rules. The department shall adopt rules governing the use, control, and protection of the resources and areas included within the marines reserves network in accordance with chapter 91.
§ - 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 marine reserves are fully protected, it shall be unlawful for any person to:
(1) Destroy, cause the loss of, injure, or degrade any resource in the marine reserves, including the water quality of the reserve, except as allowed by the rules governing that reserve;
(2) Possess, sell, offer for sale, purchase, import, export, deliver, carry, transport, or ship by any means any resource taken from a marine reserve in violation of the rules governing the reserve, or any other statute or rule pertaining to the area; or
(3) Possess prohibited gear types in the marine reserve.
(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 reserve resource, and the value of the lost use of the resource pending its restoration or replacement or the acquisition of an equivalent reserve resource, including any enforcement action costs, such as investigation and attorneys’ fees and costs.
§-7 Penalties. (a) To ensure that the high biological values associated with the marine reserves are fully protected, substantial criminal and civil penalties for violation of the rules of the marines reserves network are addressed as follows:
(1) Any person who violates any of the laws and rules applicable to the marine reserve network or any reserve therein, 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 reserve 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.