THE SENATE

S.B. NO.

1265

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to kaneohe bay.

 

 

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

 


SECTION 1. The legislature finds that Kaneohe Bay, including Ahu o Laka, known as the sandbar, has a rich cultural history that blends into our understanding of present day significance and is a sacred wahi pana to the native Hawaiian lineal and generational inhabitants of Koolaupoko Waimanalo, Kailua, Kaneohe, Heeia, Kahaluu, Waihee, Kaalea, Waiahole, Waikane, Hakipuu, and Kualoa. Over the years, over‑commercialization of Kaneohe Bay, including Ahu o Laka, has been unnaturally encouraged via social media and through unpermitted tour operators who can advertise and operate without regard for rules, regulations, and cultural awareness. Kaneohe Bay and attractions in the Bay such as Ahu o Laka are advertised as "must see" tourist stops without the mention of cultural awareness or significance, and non-permitted commercial operators set up advertisements and online payment schemes and bring guests, circumventing principles and intentions of the original 1992 Kaneohe Bay master plan. This problem is exacerbated because state entities responsible for protecting resources do not work on weekends or holidays, which encourages noncompliance with laws, rules, and regulations. Furthermore, unauthorized advertising on social media and online has increased private and rental vehicles parking illegally at Heeia boat harbor and along both sides of Kamehameha highway, causing unsafe traffic situations.

The legislature further finds that the Kaneohe Bay master plan was developed pursuant to Act 208, Session Laws of Hawaii 1990, which established a framework for the sustainable management of the bay's natural resources while accommodating a variety of uses. A compromise of competing interests resulted in a cap on the number of commercial enterprises and volume of permitted commercial activity. The vision continues to be the preservation and protection of the bay's natural resources for the continuing enjoyment of all.

The legislature also finds that limits on commercial activity have been exceeded by other activities not previously envisioned and by new technologies that support their proliferation. One example is the pre-positioning of rental kayaks at Heeia state park and Heeia Kea pier, internet advertisements for boats, kayaks, and other commercial recreational uses, and the ability of customers to pay online and through mobile money transfer platforms such as Venmo.

Accordingly, the purpose of this Act is to update the law regarding restricted activities in Kaneohe Bay.

SECTION 2. Section 200-24, Hawaii Revised Statutes, is amended to read as follows:

"[[]200-24[]] Rules. The department shall adopt rules pursuant to chapter 91 to implement the policy and purpose of this part, and to classify vessels into appropriate categories and classes.

The department shall adopt rules pursuant to chapter 91 with respect to the following:

(1) The registration and numbering of vessels;

(2) The operation, use, and equipment of vessels on or in the waters of the State;

(3) The conduct of persons involved in boating accidents and in the reporting of accidents and other casualties and losses to the department; [and]

(4) The designation of areas of the waters of the State and time periods during which thrill craft may be operated, and waters on or above which, and time periods during which, persons may engage in parasailing, commercial high speed boating, and water sledding; provided that in designating the areas, the department shall use the official recommendation of the National Marine Fisheries Service with regard to the protection of protected marine life and habitats in adopting rules to implement this section, except as otherwise provided by law[.];

(5) Prescribing procedures for enforcement personnel to issue subpoenas and to take custody of property suspected to be used in unauthorized commercial ocean use activity pursuant to section 200-39(h);

(6) Establishing administrative penalties and fines for violations of this part; and

(7) Prescribing any other procedures determined by the department in its experience and discretion to effectuate the intent of this part and the Kaneohe Bay master plan."

SECTION 3. Section 200-39, Hawaii Revised Statutes, is amended to read as follows:

"200-39 Kaneohe Bay commercial ocean use activities; permits; restrictions. [(a) For the purposes of this section, "ocean use activities" means commercial operation of thrill craft, high speed boating, parasailing, water sledding, sailing and snorkeling tours, glassbottom boat tours, or any other similar commercial ocean recreation activity for hire.

(b)] (a) Any other provision of this chapter to the contrary notwithstanding, no person shall operate thrill craft, parasailing, water sledding, or commercial high speed boating unless the person meets the requirements of section 200-37 and all rules adopted by the department that regulate or restrict these activities.

(b) No person shall conduct any commercial ocean use activity within Kaneohe Bay waters without a permit issued by the department.

(c) The following shall be construed as conducting commercial ocean use activity:

(1) Delivering or pre-positioning any commercial ocean recreational equipment for hire, within one thousand feet of any shoreline of Kaneohe Bay; or

(2) Transporting customers to or from any location on Oahu, including but not limited to Heeia Kea, the Kaneohe Yacht Club, or any private residence, to Kaneohe Bay to participate in unpermitted commercial ocean use activity.

The burden of proof shall be on the person cited for unlawful commercial ocean use activity that the conduct is not in violation of this chapter or that it is permitted pursuant to a permit, lease, or license issued by the department.

(d) No person shall advertise any commercial ocean use activity within Kaneohe Bay waters for which the person does not have a permit from the department. Advertisement in print, by word of mouth, or online in any form, including through social media, of unpermitted commercial ocean use activities or equipment shall be prima facie evidence that:

(1) The owner of the advertised commercial ocean use activity or equipment disseminated or directed the dissemination of the advertisement in that form and manner; and

(2) The commercial ocean use activity or equipment is being operated at the location advertised.

The burden of proof shall be on the provider of the commercial ocean use activity or the owner of the commercial ocean recreational equipment to establish that the equipment is not being used for a commercial ocean use activity or that the conduct is pursuant to a permit, lease, or license issued by the department, including the division of state parks.

[(c)] (e) Permits issued by the department for [the] commercial [operation of] ocean use activities in Kaneohe Bay shall be limited to the number and locations, by permit type and vessel and passenger capacity, provided in the Kaneohe Bay master plan developed pursuant to Act 208, Session Laws of Hawaii 1990, until applicable rules consistent with the master plan are adopted by the department; provided that the passenger capacity for snorkeling tours and glassbottom boat tours shall be set through rules adopted pursuant to chapter 91. No thrill craft permit may be transferred after June 21, 1998; provided that transfers of permits may be made at any time between family members.

[(d)] (f) On Sundays and federal holidays, all commercial ocean use activities shall be prohibited.

[(e)] (g) All rules adopted by the department with regard to Kaneohe Bay shall be drafted in consultation with the Kaneohe Bay regional council. For those provisions of the Kaneohe Bay master plan previously adopted by the legislature, the rules adopted by the department shall be in accordance with those provisions. Notwithstanding subsection [(c)] (e) to the contrary, if the department determines for safety or environmental protection reasons that a permitted use should be relocated, the department may relocate the permitted use and the department shall have discretion to permit vessel substitution with a similar length vessel; provided that the increase is not greater than ten per cent of the current vessel length.

For those provisions of the Kaneohe Bay master plan developed pursuant to Act 208, Session Laws of Hawaii 1990, not previously adopted by the legislature, the master plan shall be used as the recommended guideline in the adoption and implementation of rules with regard to the regulation of all activities in Kaneohe Bay.

(h) Citations for violations of this section or any rules of the department adopted pursuant to this section may be issued by the department, Hawaii harbor police, or Honolulu police department. In enforcing the provisions of this section, any duly authorized employee, agent, or representative of the department, Hawaii harbor police, or law enforcement officer of the Honolulu police department shall have the power to issue subpoenas and take legal custody of any personal property that is the subject of or related to any violation of this section or rules established by the department pursuant to this section. The property may be released only upon approval by the board or the court that has jurisdiction over the case. All costs associated with custody and storage of the property shall be at the owner's cost and expense.

(i) In addition to any penalties and fines established by rules adopted by the department, any person who violates this section or any rule adopted pursuant to this section shall be subject to the penalties and fines set forth in sections 200-14 and 200-14.5.

(j) For purposes of this section, "commercial ocean use activity" means any:

(1) Commercial operation, or the providing for hire, of thrill craft; high speed boating; parasailing; water sledding; kayaks; canoes; any manner of surfboards, sailboards, paddleboard, or related watercraft; sailing; snorkeling; diving tours; fishing tours; glassbottom boat tours; or any other similar commercial ocean activity; or

(2) Renting for use or hire any vessel or equipment used in any of the activities listed in paragraph (1).

"Commercial ocean use activity" does not include commercial fishing, commercial ocean activity providers operating pursuant to a permit issued by the department, or those operating pursuant to an existing lease or license issued by the department or board."

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for      full-time equivalent (     FTE) positions to enforce the provisions of this Act.

The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2023.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Kaneohe Bay; Restrictions; Commercial Ocean Use Activities; Permits

 

Description:

Prohibits commercial ocean use activity in Kaneohe Bay waters without a permit. Prohibits any person from advertising any commercial ocean use activity in Kaneohe Bay waters for which the person does not have a permit, lease, or license.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.