Report Title:

SUBMERGED LANDS

Description:

Allows the Board of Land and Natural Resources to lease, by direct negotiation, state submerged lands or lands beneath tidal waters for privately managed marinas or harbors without the approval of the governor or authorization of the legislature.

THE SENATE

S.B. NO.

408

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO SUBMERGED LANDS.

 

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

	SECTION 1.  Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
  "§171-      Privately managed harbors.  Notwithstanding any limitations to the contrary, the board of land and natural resources may lease, by direct negotiation, state submerged lands or lands beneath tidal waters for privately managed marinas or boat harbors on such terms and conditions as may be prescribed by the board when determined to be in the best interests of the public, provided, however, such leases would be made subject to any existing agreements, contracts and leases that may be affected, either directly or indirectly, by the newly negotiated lease."
	SECTION 2. Section 171-59, Hawaii Revised Statutes, is amended to read as follows:

"§171-59 Disposition by negotiation. (a) A lease of public land may be disposed of through negotiation upon a finding by the board of land and natural resources that the public interest demands it. Where the public land is being sought under this section by a sugar or pineapple company, and the company is the owner or operator of a mill or cannery, then, for the purposes of this section, the economic unit shall be that acreage of public land which when taken together with the lands already owned or controlled or available to the company, when cultivated is found by the board to be necessary for the company's optimum mill or cannery operation. In all other cases, public land to be sold under this section shall be an economic unit as provided in section 171-33(3).

After a determination is made to negotiate the disposition of a lease, the board shall:

(1) Give public notice as in public auction, in accordance with the procedure set forth in section 171-16(a), of its intention to lease public land through negotiation setting forth the minimum conditions thereunder, the use for which the public land will be leased. Any person interested in securing the lease shall file an application with the board not later than forty-five days after the first publication of the notice;

(2) Establish reasonable criteria for the selection of the lessee; provided that where the intended use of the land is agriculture, the department of agriculture shall establish the criteria;

(3) Determine the applicants who meet the criteria for selection set by the board or the department of agriculture, as the case may be, and notify all applicants of its determination. Any applicant may examine the basis of the determination, which shall be in writing, to ascertain whether or not the conditions and criteria established by the board or the department of agriculture were followed; provided that if any applicant does not notify the board of the applicant's objections, and the grounds therefor, in writing, within twenty days of the receipt of the notice, the applicant shall be barred from proceeding to seek legal remedy for any alleged failure of the board to follow the conditions and criteria.

If only one applicant meets the criteria for selection of the lessee, the board may, after notice as provided in (3) above, dispose of the lease by negotiation.

If two or more applicants meet the criteria for the selection of the lessee, the board shall select the lessee who submits the highest offer contained in a sealed bid deposited with the board.

(b) Disposition of public lands for airline, aircraft, airport related, agricultural processing, cattle feed production, aquaculture, marine, and maritime operations may be negotiated without regard to the limitations set forth in subsection (a) and section 171-16(c); provided that:

(1) The disposition encourages competition within the aeronautical, airport related, agricultural, aquaculture, and maritime industries;

(2) The disposition shall not exceed a maximum term of thirty-five years; and

(3) The method of disposition of public lands for cattle feed production as set forth in this subsection shall not apply after December 31, 1988.

For the purpose of this subsection "agricultural processing" means the processing of agricultural products, including dairying, grown, raised, or produced in Hawaii, and "airport related" means a purpose or activity that requires air transportation to achieve that purpose or activity.

(c) Disposition of public lands for privately managed marinas or harbors constructed, maintained, and operated in accordance with chapter 200, may be negotiated, provided that the disposition shall not exceed a maximum term of fifty-five years, and the disposition of selected boating facilities as may be designated by the board may be made only to qualified harbor development or management firms.

After a determination is made to negotiate a lease for marina or harbor purposes, the board, without regard to the limitations set forth in subsection (a), section 171-53(c), sections 200-9 through 200-14, and section 200-16 or administrative rules adopted pursuant thereto, and chapters 76, 77, 102, 103, and 103D, shall:

(1) Give public notice in accordance with section 171-16(c);

(2) Establish reasonable criteria for the selection of the lessee; and

(3) Appoint a selection committee to determine which proposals, if any, meet the criteria for selection set by the board, and notify all applicants of its determination. Any applicant may examine the basis of the determination, which shall be in writing, to ascertain whether or not the conditions and criteria established by the board were followed; provided that if any applicant does not notify the board of the applicant's objections, and the grounds therefor, in writing, within twenty days of receipt of the notice, the applicant shall be barred from proceeding to seek any legal remedy for any alleged failure of the board to follow the conditions and criteria. The board shall have the right to reject part or all of any or all proposals.

If only one proposal meets the criteria for selection of the lessee, the board may, after notice as provided in paragraph (1), dispose of the lease for public lands, or designated small boat harbors, by negotiation.

If two or more proposals meet the criteria for selection of the lessee, the board shall select the lessee who submits the best offer, based on the selection criteria, in terms of proposed level of services, planned capital improvements, and revenue to the department, contained in a sealed bid deposited with the board."

	SECTION 3.  Section 171-53, Hawaii Revised Statutes, is
 amended by amending subsection (c) to read as follows:
       "(c) [Repeal and reenactment on June 30, 2005. L 2000, c 261, §5.] The board, with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution, may lease state submerged lands and lands beneath tidal waters under the terms, conditions, and restrictions provided in this chapter; provided that the authorization of the legislature shall not be required for leases issued under chapter 190D; and provided further that the approval of the governor and authorization of the legislature shall not be required for any grant of easement or lease of state submerged lands or lands beneath tidal waters used for moorings, cables, pipelines, {or} noncommercial piers, or privately managed marinas or harbors; provided further that this exemption shall not apply to easements for cables used for interisland electrical transmission or slurry pipelines used for transportive materials, mined at sea, or waste products from the processing of the same.

The lease shall provide that the lands shall be reclaimed at the expense of the lessee. Title to the reclaimed lands shall remain in the State.

	SECTION 4. Act 261, SECTION 5, Session Laws of Hawaii 2000, is amended to read as follows: 

"This Act shall take effect upon its approval; provided that the authority granted to the department of land and natural resources to enter into lease agreements with owners of private residential noncommercial piers shall be repealed on June 30, 2005, and the amendments made by sections 1, 2, and 3 of this Act to the Hawaii Revised Statutes, shall be repealed as of that date and section{s} 171-36(a) {and 171-53(c)}, Hawaii Revised Statutes, shall be reenacted in the form {in which they} it read on the day prior to the effective date of this Act and that Hawaii Revised Statutes, section 171-53(c) shall be adopted as amended by Section 5 of this Act; provided further that any lease agreement executed pursuant to this Act prior to June 30, 2005, or any lease extension executed thereon after the repeal of this Act, shall remain exempt from section 171-36(a)(9), Hawaii Revised Statutes, after the repeal of this Act."

SECTION 5. Section 171-53(c), Hawaii Revised Statutes, as enacted prior to June 20, 2000, and to be reenacted on July 1, 2005, shall be amended to read as follows:

"(c) The board, with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution, may lease state submerged lands and lands beneath tidal waters under the terms, conditions, and restrictions provided in this chapter; provided that the authorization of the legislature shall not be required for leases issued under chapter 190D; and provided further that the approval of the governor and authorization of the legislature shall not be required for any grant of easement or lease of state submerged lands or lands beneath tidal waters used for moorings, cables, [or] pipelines[;] or privately managed marinas or harbors; provided further that this exemption shall not apply to easements for cables used for interisland electrical transmission or slurry pipelines used for transportive materials, mined at sea, or waste products from the processing of the same.

	The lease shall provide that the lands shall be reclaimed at the expense of the lessee.  Title to the reclaimed lands shall remain in the State."
	SECTION 6.  Statutory material to be repealed is bracketed and underlined.  New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval. Provided, however, Section 5 of this Act shall take effect on June 30, 2005.


INTRODUCED BY:

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