Bill Text: HI SB115 | 2024 | Regular Session | Introduced
Bill Title: Relating To Aquaculture.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [SB115 Detail]
Download: Hawaii-2024-SB115-Introduced.html
THE SENATE |
S.B. NO. |
115 |
THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to aquaculture.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to promote economic development in the State by establishing an aquacultural area lease program within the department of agriculture for the purpose of identifying state facilities, state lands, and state marine waters that are suitable for commercial aquaculture.
SECTION 2. Chapter 141, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§141- Aquacultural
area lease program. (a)
There is established within the department an aquacultural area lease
program for the purpose of:
(1) Identifying aquacultural
areas comprising state facilities, state lands, state marine waters, or a
combination thereof that are suitable for commercial aquacultural use; and
(2) Authorizing the
department to issue leases for commercial aquacultural use.
The
department shall manage and administer the program and any aquacultural area
leased pursuant to the program in consultation with the department of land and
natural resources, the agribusiness development corporation, and any other
agency having jurisdiction over the aquacultural area.
(b) The department, in identifying and selecting
state facilities, state lands, state marine waters, or any combination thereof
as aquacultural areas to be leased pursuant to this section, shall:
(1) Hold at least
one public meeting in the community in which the proposed aquacultural area is
situated;
(2) Take
into consideration comments from the department of land and natural resources,
agribusiness development corporation, and any other agency having jurisdiction over the proposed aquacultural area;
and
(3) Complete the
identification and selection process by June 30, 2025.
(c) Notwithstanding any other law to the
contrary, the department may lease the aquacultural areas identified and
selected for the program; provided that:
(1) The
lessee obtains all necessary federal, state, and county permits to establish
and conduct the proposed aquacultural activities in the aquacultural area,
including a conservation district use permit issued by the board
of land and natural resources pursuant to section 183C-6 or 190D-11, as
applicable, if the aquacultural area includes lands within the state land use
conservation district or state marine waters;
(2) The
department and the lessee enter into an aquacultural area lease pursuant to this section for
the lessee's proposed aquacultural activities in the aquacultural area;
(3) The lessee uses the
leased aquacultural area only for aquacultural activities that are approved by
the department, authorized by the permits obtained pursuant to paragraph (1),
and set forth in the lease executed pursuant to paragraph (2);
(4) The
lessee's aquacultural activities in the aquacultural area do not have an
adverse impact on existing programs of the department or other state
departments or agencies, including the project facility program and
agricultural projects implemented by the agribusiness development corporation
and the marine life conservation district program, shoreline fisheries
management area program, and the natural area reserve program administered by
the department of land and natural resources;
(5) The
lessee's aquacultural activities in the aquacultural area do not abridge,
alter, conflict with, or impair konohiki fishing rights recognized in sections
187A-23 and 190D-24, including the right to sublease private konohiki fishing
grounds for marine activities;
(6) The
leasing of the aquacultural area does not adversely impact the public's use and
enjoyment of the reefs in the state marine waters;
(7) The lessee is
in compliance with all applicable federal, state, and county statutes,
ordinances, and rules;
(8) The
department makes a determination that the lease is for commercial use; and
(9) Any
lease entered into by the department pursuant to this section shall be fully
executed no later than June 30, 2033.
(d) Leases issued by the
department shall:
(1) Specify
the term of the lease and the nature of the exclusive use of the aquacultural area
being granted;
(2) Specify
the aquacultural activities permitted to be conducted in the aquacultural area
pursuant to the lease; provided that the lease shall be issued only for
aquacultural activities that are approved by the department and authorized by the
permits obtained pursuant to subsection (c)(1);
(3) Specify
an annual rent set by the department for the leased aquacultural area; provided
that the basic rent charged in the lease may be supplemented by royalty
payments;
(4) Require that
the lessee execute a bond conditioned upon the substantial performance of the
activities described in the lease. The
amount of the bond so executed shall be appropriate to the size, scale, and risk
of the activity for which the lease is granted, and shall be sufficient to:
(A) Protect
the public interest in the event of the removal of any structures or aquatic
plants or animals cultivated; and
(B) Restore
or remediate the facilities, lands, and waters to the satisfaction of the
department in and upon the leased aquacultural areas if the lease is forfeited
for nonperformance or the department requires the removal or eradication of
aquatic plants or animals pursuant to paragraph (8);
(5) Specify that if
a lessee abandons a leased aquacultural area, the department may order the
removal or sale at public auction of all improvements, assets, aquatic plants
or animals, and equipment remaining in and upon the leased aquacultural area,
and shall transmit to the aquacultural development special fund, established by
section 141-54, the entire amount received from any public auction and any
proceeds received from the lessee's performance bond. Alternatively, the department may permit the
use of the improvements, assets, plants or animals, and equipment for purposes that
benefit the general public;
(6) Specify that
the aquatic plants or animals described in the lease, which are to be
cultivated and contained within the leased aquacultural area, are the exclusive
harvest of the lessee; provided that any plant or animal that escapes from the
leased aquacultural area and is not clearly identifiable as the property of the
lessee, shall become common property and may be taken or caught by any person,
subject to the fishing laws of the State, without violating the rights of the
lessee;
(7) Specify that:
(A) The
lessee is responsible for the removal of any cultivated aquatic plants or
animals found outside the leased aquacultural area but within state facilities,
state lands, or state marine waters, if removal is required to protect the
environment or public health and safety, and removal is demanded by the
department;
(B) The
lessee is solely responsible for all costs of removal of the aquatic plants or
animals whether within or outside of the leased aquacultural area; and
(C) If
action is required by the department to eradicate escaped aquatic plants or
animals, all costs of eradication shall be borne by the lessee; provided that
the costs borne by the lessee shall be no greater than the amount of the bond
required under paragraph (5);
(8) Specify that,
if the chairperson finds or has reasonable cause to
believe that an activity conducted by the lessee in or upon the aquacultural area
described in the lease is causing an immediate danger to human or marine life
or the environment of the aquacultural and surrounding areas, the chairperson
may direct a temporary or permanent suspension of aquacultural activities in
the affected aquacultural area. Upon direction
of the chairperson, the department shall immediately order the lessee or
lessees affected by the notice to show cause why their activities should not be
terminated, or why any structures, cultivated aquatic plants or animals, or
equipment should not be removed from the aquacultural area. The department shall proceed to hold a public
hearing and issue its order with respect to the hearing within a reasonable
period. In its order following the
hearing, the department may direct a temporary or permanent suspension of
commercial or research activities in the affected aquacultural area, removal of
equipment or cultivated aquatic plants or animals, or other measures as the
department deems appropriate for protection of human or marine life and
environment of the aquacultural area, including forfeiture to and destruction
by the State of any aquatic plant or animal species;
(9) Specify that
the lease may be assigned in whole or in part, or amended; provided that the
department determines that the assignment or amendment is in the public
interest and meets the provisions of this section and consents to the
assignments. The department may consent
to the mortgage of a lease pursuant to section 171-22;
(10) Specify that
the lease may be revoked by the department for violation of any lease
provision. The department shall deliver
a written notice of the breach or default of any lease agreement by registered
or certified mail to the party in default and to each holder of record having
any security interest in the leased aquacultural area, making demand upon the
party to cure or remedy the breach or default within sixty days from the date
of receipt of the notice. Upon failure
of the party to cure or remedy the breach or default within sixty days from the
date of receipt of the notice, or within any additional period the department
may allow for good cause, the department may revoke the lease; and
(11) Contain a
statement describing the degree of exclusivity or access to the leased aquacultural
area by the public that will be based on an analysis of the user listing and
descriptions provided in the application, and comments made by the public and
in consideration of, but not limited to, the following: compatibility of the operation with existing
uses, perceived liability to the lessee and the public, and perceived risk to
the lessee's investment.
(e) Leases issued by the
department may:
(1) Specify that
failure of the lessee to substantially perform the activities for which the
lease was granted shall constitute grounds for revocation of the lease and
forfeiture to the State of all structures and all aquatic plants or animals
cultivated in and upon the leased aquacultural area;
(2) Specify that
the lessee shall construct and maintain gates, openings, or lanes at reasonable
distances from one another throughout a leased aquacultural area that includes
surface waters and in which any type of enclosure is an obstacle to free
navigation, unless public transit in or through the enclosed waters will cause
undue interference with the operation being conducted by the lessee and
authorized by the lease within the leased aquacultural area;
(3) Require, where
necessary, that:
(A) All
lessees mark off the areas under lease by appropriate ranges, monuments,
stakes, buoys, fences, or any other devices placed so that they do not
interfere unnecessarily with navigation and other traditional uses of the water
surface;
(B) All
lessees identify the aquacultural area under lease and the names of the lessees
on signs appropriately placed pursuant to specifications established by the
department; and
(C) All
limitations upon the use by the public of an aquacultural area under lease
shall be clearly posted by the lessee pursuant to specifications established by
the department; and
(4) Include other
terms and conditions as the department deems advisable to effectuate the
purposes of the state constitution and this section.
(f) The chairperson or chairperson's authorized
agents shall have the authority to enter and inspect any and all aquacultural areas
leased by the department for the purpose of determining compliance with the
terms and provisions of any lease issued under this section.
(g) A person who wishes to obtain a lease for an
aquacultural area pursuant to this section shall request an aquacultural area
lease from the department. Upon receipt
of a completed application and authorization of a lease, the department shall:
(1) Negotiate with
and grant a lease to the applicant; or
(2) Conduct a
public auction and grant the lease to the highest qualified bidder.
Public auctions shall be
conducted in accordance with chapter 171.
If an auction is held and the applicant submitting a completed
application is not the highest qualified bidder, the department shall require
the highest qualified bidder to indemnify the applicant for all legitimate
costs incurred in the preparation of any environmental assessment or environmental
impact statement included in the application pursuant to chapter 343 and the
rules adopted thereunder. In
establishing and following internal procedures for lease applications, the
department shall attempt to minimize costs to those applicants submitting
completed applications. The department
shall not revoke or modify its approval of an application in a way that
invalidates, impairs, limits, or affects, directly or indirectly, in whole or
in part, the rights of a lessee as set forth in the lease granted to the lessee
pursuant to this section.
(h)
The program may use the moneys in the aquaculture development special
fund established by section 141-54 to carry out the purposes of this section,
including hiring the necessary employees, specialists, and consultants. The revenues obtained from the leasing of
aquacultural areas pursuant to this section shall be deposited into the
aquaculture development special fund; provided that the portion of revenues subject
to chapter 10, shall be deposited into the public land trust fund as provided
by law.
(i) Nothing in this section shall preclude the
department from working with and receiving assistance from any other department
or agency in carrying out the purposes of this section. If state facilities, state lands, and state
marine waters under the control and management of other agencies are required
by the department for purposes of enforcing this section, the agency having the
control and management of those required facilities, lands, and waters, upon
request by the department, may lease the lands and waters to the department
upon the terms and conditions as may be agreed to by the parties. Notwithstanding the foregoing, no public
lands shall be leased to the department if the lease would impair any covenant
between the State or any county, or any department thereof, and the holders of
bonds issued by the State or the county or department.
(j)
Any person who conducts, in an aquacultural area, any aquacultural
activity that is not permitted by a lease granted to that person by the
department, or who conducts these activities in or upon aquacultural areas
without having obtained the approval of the department, shall be fined not more
than $10,000 for each separate offense.
Each day of violation shall constitute a separate offense. Any action taken to impose or collect the
penalty provided for in this section shall be considered a civil action.
(k)
Any person who wilfully or recklessly damages, disturbs, or interferes
with any aquacultural activity that has been permitted in a lease granted by
the department, or who wilfully or recklessly damages, disturbs, interferes
with, takes, or possesses any improvements, assets, aquatic plants or animals,
or equipment in an aquacultural area leased to a person, without the permission
of that person, shall be subject to civil proceedings initiated by any person
damaged thereby, notwithstanding the result in any criminal proceedings
commenced under subsection (l).
(l) Any person who negligently or wilfully damages,
disturbs, or interferes with any aquacultural activity that has been permitted
in a lease granted by the department, or who negligently or wilfully damages,
disturbs, interferes with, takes, or possesses any improvements, assets,
aquatic plants or animals, or equipment in an aquacultural area leased to a
person, without the permission of that person, shall be treated in accordance
with the applicable provisions of chapter 708.
(m) Nothing in this section shall be held in any
way to interfere or conflict with any vested rights under or arising out of any
grant, lease, or license of or concerning any government lands or water rights,
or rights-of-way; nor shall anything in this section be construed to change any
rights in or concerning any water upon or flowing from or through any land set
apart or surrendered as a forest reserve, or as depriving or limiting any state
officer from exercising any existing power or authority or any power that may
hereafter be created to deal with water or water rights, or rights-of-way.
(n) The department shall adopt rules to
effectuate the purposes of this section in accordance with chapter 91.
(o) As used in this section, unless the context
clearly requires otherwise:
"Agency" means any
federal, state, local, or foreign government or any entity of any government.
"Aquacultural area" means
state facilities, state lands, state marine waters, or any combination thereof
identified by the department as being suitable for commercial aquaculture and
may include public lands transferred from the department of land
and natural resources to the department as non-agricultural park lands pursuant
to chapter 166E; provided that "aquacultural areas" shall not include
facilities, lands, or waters designated
as being necessary for national defense purposes, as determined by the
department of land and natural resources in consultation with the appropriate
federal agencies.
"Aquacultural activity" or
"Aquaculture" means the propagation, cultivation, or farming of
aquatic plants and animals in controlled or selected environments for
commercial purposes, including research, stocking, aquaponics, or any growing
of plants or animals with aquaculture effluents.
"Chairperson" means the
chairperson of the board of agriculture.
"Department" means the
department of agriculture.
"Facility" means a building or
buildings or similar structure owned or leased by, or otherwise under the
jurisdiction of, an agency.
"Lease" means the agreement
establishing the right to possess and use an aquacultural area pursuant to this
section for a term of years.
"Lessee" means the
holder of a valid aquacultural area lease granted by the department pursuant to
this section.
"Program" means the
aquacultural area lease program.
"Public lands" has the
same meaning as defined in section 171-2; provided that "public
lands" include lands to which the department holds title by way of
foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to
recover debts otherwise owed the department under chapter 167.
"State lands" includes
all public and other lands owned or in possession, use, and control of the then
Territory of Hawaii or the State of Hawaii, or any of its agencies.
"State marine waters"
means all waters of the State, including the water column, water surface, and
state submerged lands, 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.
"Water column" means the vertical extent of marine waters, including the surface, above submerged lands."
SECTION 3. Section 26-16, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) The department shall:
(1) Promote the conservation, development, and utilization of agricultural resources in the State;
(2) Assist the farmers of the State and any others engaged in agriculture by research projects, dissemination of information, crop and livestock reporting service, market news service, and any other means of improving the well-being of those engaged in agriculture and increasing the productivity of the lands;
(3) Administer the
programs of the State relating to animal husbandry, entomology, farm credit,
development and promotion of agricultural products and markets, and the
establishment and enforcement of the rules on the grading and labeling of
agricultural products; [and]
(4) Administer the
aquaculture program under section 141‑52[.]; and
(5) Administer the
aquacultural area lease program under section 141- ."
SECTION 4. Section 141-54, Hawaii Revised Statutes, is amended to read as follows:
"§141-54 Aquaculture development special fund. (a) There is established in the state treasury the aquaculture development special fund into which shall be deposited:
(1) Appropriations from the legislature;
(2) Moneys collected as fees for special microbiological and histological procedures and expert aquaculture-related services;
(3) Moneys collected from the sale of any item related to aquaculture development that is purchased from the department;
(4) Moneys directed to
the aquaculture development program from any other sources, including but not
limited to grants, gifts, and awards; [and]
(5) Moneys
collected as fees or lease rent under the aquacultural area lease program
pursuant to section 141- , notwithstanding section 190D-33; and
[(5)] (6)
Moneys derived from interest, dividend, or other income from the
above sources.
(b) Moneys in the aquaculture development special fund shall be used to:
(1) Implement the
aquatic disease management programs and activities of the department, including
provision of state funds to match federal grants; [and]
(2) Support research
and development programs and activities relating to the expansion of the state
aquaculture industry. Research and
development programs and activities funded under this paragraph may be conducted
by department personnel or through contracts with the University of Hawaii or
other qualified persons[.]; and
(3) Implement the
aquacultural area lease program pursuant to section 141- ,
including:
(A) Hiring the necessary employees, specialists, and consultants to
carry out the program; and
(B) Paying lease rents to agencies under the aquacultural areas program pursuant to section 141- (i)."
SECTION 5. Section 190D-2, Hawaii Revised Statutes, is amended to read as follows:
"§190D-2 Findings and purpose. Article XI of the constitution of the State of Hawaii relating to the conservation, control, and development of resources, provides in section 6 that the State shall have the power to manage and control the marine, seabed, and other resources located within the boundaries of the State, including its archipelagic waters, and reserves to the State all such rights outside state boundaries not specifically limited by federal or international law.
The legislature finds that the State's marine waters offer the people of Hawaii sources of energy, minerals, food, and usable space. The legislature further finds that the proper management and development of these ocean resources require defined rights of usage and tenure.
The purpose of this chapter is to establish procedures for the leasing of state marine waters and to guarantee property rights and protection for any activities approved under these procedures. Unless otherwise provided, the provisions of this chapter shall not apply to leases administered by the department of agriculture for the aquacultural area lease program pursuant to section 141- ."
SECTION 6. Section 190D-33, Hawaii Revised Statutes, is amended to read as follows:
"§190D-33 Revenues. The revenues obtained from the leasing of
state marine waters pursuant to this chapter shall be deposited into the
special land and development fund to be used for planning, research, and
development of the aquaculture industry; provided that the portion of revenues
subject to chapter 10, shall be deposited into the public land trust fund as
provided by law[.]; provided further that revenues obtained from the
leasing of state marine waters as aquacultural areas pursuant section
141- shall be deposited into the aquaculture development special
fund established under section 141-54."
SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect upon its approval.
INTRODUCED BY: |
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Report Title:
Aquaculture; Aquacultural Area Lease Program; Department of Agriculture; State Facilities; State Lands; State Marine Waters; Ocean and Submerged Lands
Description:
Establishes within the Department of Agriculture, an Aquacultural Area Lease Program for the purpose of identifying state facilities, state lands, and state marine waters that are suitable for use and lease as commercial aquacultural areas. Allows agencies having control and management of identified aquacultural areas to lease the facilities, lands, and waters to the Department of Agriculture for the purposes of the Act. Allows the program to use the moneys in the Aquaculture Development Special Fund to carry out the purposes of the Act and requires the revenues obtained from aquacultural area leases to be deposited into the Aquaculture Development Special Fund. Imposes penalties and civil and criminal liabilities. Exempts the program from being subject to the Hawaii Ocean and Submerged Lands Leasing Act.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.