Report Title:

Northwestern Hawaiian Islands Refuge Act; Coral Reef Protection

Description:

Repeals regulated fishing in the Northwestern Hawaiian Islands. Creates the Northwestern Hawaiian Islands Refuge Act. Sets aside the Northwestern Hawaiian Islands as a no-take refuge. Establishes the Northwestern Hawaiian Islands refuge committee. Provides enforcement and penalties for violations of the laws and rules of the refuge.

THE SENATE

S.B. NO.

3099

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to coral reef protection in the northwestern hawaiian islands.

 

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

SECTION 1. (a) The legislature finds and declares that:

(1) The Northwestern Hawaiian Islands are the most isolated coral reefs in the world with the highest proportion of marine endemic species and many valuable and unique natural and cultural resources, most of which are highly vulnerable;

(2) The approximately one thousand two hundred mile stretch of coral islands, seamounts, banks, and shoals are unquestionably some of the healthiest and most extensive coral reefs in the United States;

(3) This vast area supports a dynamic reef ecosystem that supports more than seven thousand marine species, of which approximately half are unique to the Hawaiian Island chain;

(4) Most coral reef resources of the Northwestern Hawaiian Islands are found in state waters;

(5) These unique marine assets should be given the same protections and support that Hawaii's unique terrestrial assets have been given through the natural area reserve system;

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

(7) State waters in the Northwestern Hawaiian Islands need to be set aside as a refuge to preserve in perpetuity their unique and fragile ecosystems, habitats, and communities of flora and fauna, as well as areas of traditional Hawaiian cultural significance;

(8) A Northwestern Hawaiian Islands marine refuge would also protect the foraging grounds of the monk seal, the nesting green sea turtle, and the multitude of seabirds that make the Northwestern Hawaiian Islands national wildlife refuge their home; and

(9) Establishing the Northwestern Hawaiian Islands as a state marine refuge would complement the existing federal Northwestern Hawaiian Islands coral reef ecosystem Reserve; close a current enforcement loophole; ease the melding of state and federal waters into a Northwestern Hawaiian Islands national marine sanctuary; and provide the support needed to accomplish the designation of Northwestern Hawaiian Islands as a world heritage site, which would benefit Hawaii's economy.

(b) Designating state waters in Northwestern Hawaiian Islands as a refuge would also protect valuable nursery and spawning grounds of many species of fish and invertebrates and may help replenish depleted populations in the main Hawaiian islands. 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, also known as 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.

(c) Networks of refuges buffer against environmental variability and provide significantly greater protection for marine communities than a single refuge. 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 associated economic opportunities that may contribute as much or more to Hawaii's economy than commercial fishing, such as scientific research, cultural practices, marine education, and ecotourism; however, even non-extractive uses can alter and damage refuge ecosystems. Since it is usually easier to prevent environmental damage than it is to repair it and 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 in the refuge that may have a negative impact. In accordance with the precautionary approach embodied in the public trust doctrine of the state constitution, an activity may be specifically permitted in the refuge 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. Section 188-37, Hawaii Revised Statutes, is repealed.

"[§188-37 Fishing in the Northwestern Hawaiian Islands. (a) The department of land and natural resources may adopt rules relating to the taking of marine life in the Northwestern Hawaiian Islands, where, in the judgment of the department the action will not deplete the stocks of marine life in the area; the rules may include open and closed seasons, size limits, methods and appliances, and establishment of permits for taking marine life.

(b) Those islands, reefs, and shoals, as well as their respective appurtenant reefs and territorial waters, of the Hawaiian Islands chain beginning and including Nihoa Island to and including Kure Island shall be referred to as the Northwestern Hawaiian Islands.

(c) The department may issue permits to those persons with a valid commercial marine license issued pursuant to section 189-2 who own or operate a vessel deemed capable by the department for effectively taking marine life within the Northwestern Hawaiian Islands, and whenever the department deems necessary, it may limit the number of permits issued to take marine life in any particular area and such limitation shall be on the basis of the order of application for permits. Issuance of permits shall be limited to persons utilizing methods or appliances approved by rule of the department, which need not be legal elsewhere within the State, and these permittees may take species of marine life, when and as approved by rule of the department. The fee for the Northwestern Hawaiian Islands taking permit shall be established by the department by rules adopted in accordance with chapter 91.

The department may revoke any permit for any infraction of the terms and conditions of the permit. Any person whose permit has been revoked shall not be eligible to apply for another permit until the expiration of one year from the date of revocation.]"

SECTION 3. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

NORTHWESTERN HAWAIIAN ISLANDS REFUGE

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

"Adaptive management" means a management approach that involves assessments of the progress that a marine refuge has made toward its stated goals and that 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 including any part, product, egg, or offspring thereof; or 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 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.

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

"Ecosystem" a community of organisms interacting with each other and their non-living environment.

"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 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" means restrictions applied to activities in specific areas or zones of the Northwestern Hawaiian Islands marine refuge, 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 State or federal government, of the State or country, or of any foreign government.

"Refuge committee" means the interagency Northwestern Hawaiian Islands refuge committee established in section    -6.

"Species" includes any subspecies or lower taxa of aquatic life, wildlife, or aquatic 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" means real-time satellite position-fixing transmitters that allow for remote tracking of the position, and sometimes communications with, vessels.

"Wildlife" means any undomesticated member of the animal kingdom, regardless of whether reared in captivity, including any part, product, egg, or offspring thereof, except aquatic life as defined in this section.

§   -2 Northwestern Hawaiian Islands marine refuge system. (a) All state waters in the Northwestern Hawaiian Islands shall be set aside as a marine refuge upon the effective date of this Act.

(b) The Northwestern Hawaiian Islands marine refuge shall be managed by the department.

§   -3 Powers and duties of the department. To preserve, manage, and protect the Northwestern Hawaiian Islands marine refuge, the department, in addition to any other powers, shall:

(1) Designate and bring under its control and management, as part of the Northwestern Hawaiian Islands marine refuge, appropriate areas from the following:

(A) State-owned waters, coral reefs, and submerged lands;

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

(C) Lagoons, embankments, 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 refuge areas;

(4) Prepare, in consultation with Northwestern Hawaiian Islands refuge committee, and implement the management plan set forth in section    -4;

(5) Manage and protect, in consultation with the refuge committee and based on the best available scientific and socio-economic data, Northwestern Hawaiian Islands refuge;

(6) Allow no access to the refuge unless it is specifically permitted; and

(7) Prohibit all taking of marine life within the refuge subject to section    -5(b).

§   -4 Northwestern Hawaiian Islands refuge management plans. (a) The department, after consulting the best available scientific data and in consultation with the refuge committee, shall prepare a comprehensive refuge management plan based upon that information so as to accomplish the purposes of this chapter.

(b) The refuge management plan shall:

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

(2) Utilize adaptive management of resources that incorporates feedback from research and monitoring;

(3) Permanently protect under a no-use designation representative habitats, unique ecological areas, and areas of critical ecological function;

(4) Develop and implement programs that comprehensively protect, monitor, and provide enforcement for the refuge; and

(5) Consult with stakeholders of Hawaii's marine ecosystems in the management, monitoring, and protection of the refuge.

§   -5 Rules. (a) The department, subject to chapter 91, may adopt rules governing the use, control, and protection of the areas included within the Northwestern Hawaiian Islands refuge; provided that no rule relating to the permitted use of any area assigned to the refuge shall be valid and no use of any area shall be permitted unless the rule or permitted use is consistent with the policies and criteria recommended by the refuge committee.

(b) Entrance into and activities within the refuge requested by applicants seeking to exercise traditional Hawaiian ceremonial practices compatible with the conservation purposes of the refuge shall be approved by the committee and the department after review and consultation with cultural practitioners.

§   -6 Northwestern Hawaiian Islands refuge committee. (a) There is established within the department for administrative purposes an Northwestern Hawaiian Islands refuge committee. The committee shall consist of nine members with marine scientific and marine resource management expertise from each of the following:

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

(2) One representative from the Hawaiian and Pacific islands national wildlife refuge complex;

(3) One representative from the National Marine Sanctuary Program;

(4) One representative from National Oceanic and Atmospheric Administration Fisheries;

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

(6) One representative from the University of Hawaii;

(7) One representative from the Bishop Museum;

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

(9) One representative from the conservation community.

(b) Nongovernmental members shall:

(1) Initially be appointed by the head of the division of aquatic resources of the department of land and natural resources. Thereafter they shall be selected by the refuge committee;

(2) Serve for two-year terms; provided that a nongovernmental member shall not serve for more than two consecutive terms. 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. Five 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 refuge management plan. To accomplish this, the committee, among other tasks, shall:

(1) Review the best available scientific data on coral reefs 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 and identify sources of funding from partnering agencies and private entities;

(3) Establish policies and criteria regarding the management, protection, restoration, monitoring, enforcement, kapus, and permitted uses that are ecologically appropriate for the refuge;

(4) Recommend to the department a refuge management plan; and

(5) Advise the department on any other matters relating to the protection and management of Northwestern Hawaiian Islands refuge.

§   -8 Enforcement. (a) Any employee or agent of the department upon whom the board has conferred the 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 refuge of the law and rules applicable thereto, shall have the authority to enforce this chapter or any rule adopted thereto.

(b) Any Hawaii-registered vessel traveling north of twenty-three degrees north or west of 161.5 degrees west shall use active and approved vessel monitoring systems.

(c) All vessels over forty feet in length in the Northwestern Hawaiian Islands and transiting to, from, and through the Northwestern Hawaiian Islands shall be required to:

(1) Carry an active and approved vessel monitoring system on each vessel; and

(2) Post a $1,000,000 vessel-grounding bond.

§   -9 Penalty. (a) Any person who violates any of the laws and rules applicable to the refuge, upon conviction thereof, shall be guilty of a misdemeanor and shall be fined not less than $1,000.

(b) Except as otherwise provided by law, the board or its authorized representative by proper delegation may set, charge, and collect administrative fines or bring legal action to recover administrative fines, fees, and costs, as documented by receipts or affidavit, including attorney's fees and costs, or payment for damages for the cost to correct damages resulting from a violation of this chapter, any rule adopted thereunder, or forfeiture of any illegally obtained profit. The administrative 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 4. Statutory material to be repealed is bracketed and stricken.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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