Report Title:

State Small Boat Harbors; Marine Parks

 

Description:

Converts all state small boat harbors into independent, privately managed marine parks in accordance with operating agreements to be entered into with the department of land and natural resources that are based on principles of community-based management.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1513

TWENTY-FIRST LEGISLATURE, 2001

  

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

relating to state small boat harbors.

 

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

SECTION 1. The legislature reiterates its findings in section 2 of Act 160, Session Laws of Hawaii 1997, that a system of community-based management allows those who have a direct stake in a facility, and the outcome of decision making regarding that facility, to take a significant and effective role in the process, while giving the people involved a greater sense of ownership and commitment.

The legislature further finds that community-based management is worthy of pursuit as a means of restructuring each of the State's small boat harbors, by increasing efficiency, resolving some of the concerns raised in the 1993 and 2000 auditor's reports, and creating marine parks that will better serve all of the affected user groups.

User groups of state small boat harbors include trailer boaters who use the launching ramp and parking facilities, fishers, marina slip tenants, marina dry storage tenants, marina live aboard tenants, marina neighbors such as condominiums and hotels, surfers who regularly use the area, beach goers and picnickers with barbecue facilities, paddlers and their organizations, and yacht clubs with their attendant youth sailing programs. Other user groups include educational programs and racing activities, as well as shoreside marine-related businesses such as fuel piers, boat repair yards, yacht brokerages, tackle shops, marine hardware and convenience stores, restaurants, and coin-operated laundry facilities.

The legislature finds that allowing the State's small boat harbors to be converted into independent marine parks will foster greater responsibility and accountability in the management of the those boat harbors. Moreover, instituting a community-based management system in marine parks will help to reduce the existing bureaucracy, streamline government services, and better serve the marine recreational needs of the user groups.

Currently, small boat harbors, which are regulated by the board of land and natural resources, are subjected to a multitude of confusing and cumbersome administrative rules. While these rules may be necessary to implement legislative mandates and to comply with court decisions which have been made over the years, some rules have been shown to be superfluous, excessive, and costly.

In addition, user fees paid by the small boat harbors into the boating special fund are currently used for maintaining boating facilities around the State without regard to each particular facility's contribution to the fund. Converting small boat harbors into independent marine parks would allow them to streamline services, cut costs, and increase revenues. As a result, the marine parks will retain a percentage of their user fees, commercial operator fees, lease fees, and percentages, and use those funds to maintain their own facilities, while turning over a percentage of the gross receipts back to the State to retire the debt attributable to the maintenance and repair of those marina facilities.

Converting the State's small boat harbors into independent marine parks would be mutually beneficial to both the marine parks and the State. Many small boat harbors have expressed a strong interest in taking over the day-to-day management of their harbors and thereby achieving greater independence. The State would also benefit by decreasing expenditures and streamlining state functions that could be more appropriately and cost-effectively managed by the private sector.

The purpose of this Act is to convert the State's small boat harbors into independent, privately managed marine parks in accordance with operating agreements to be entered into with the department of land and natural resources that are based on principles of community-based management.

SECTION 2. Chapter 200, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§200- State marine parks. (a) As used in this section, unless the context otherwise requires:

"Harbor" or "small boat harbor" means a state small boat harbor that was formerly constructed, maintained, and operated in accordance with this chapter.

"Marina board" means a board of nine individuals duly elected by a marine park community, which is comprised of local community members who represent the various user groups, slip holders, and lessees within the small boat harbor.

"Marine park" means a former small boat harbor that is independently managed and administered pursuant to principles of community-based management. Marine parks are constructed, maintained, and operated for the purposes of:

(1) Recreational boating activities, including the utilization of watercraft for sports, hobbies, or pleasure;

(2) Landing of fish; and

(3) Commercial vessel activities, including the utilization of vessels for activities or services provided on a fee basis.

(b) All small boat harbors in the State shall be independently managed and administered as marine parks in accordance with principles of community-based management pursuant to this section.

(c) The department and the marina board shall enter into an agreement which shall include the following provisions:

(1) The marina board shall assume the operations and management of the marine park, subject to this section;

(2) The marina board shall be responsible for the proportionate share of state debt attributable to the maintenance and repair of the marina facility that is outstanding on the effective date of the agreement;

(3) The amount of state debt outstanding which is attributable to the maintenance and repair of the marina facility shall be determined by the auditor in accordance with a schedule to be determined by the department and the marina board;

(4) Revenues currently generated by fee and permit collections from harbor users under section 200-10 shall not be deposited into the state boating special fund, but instead shall be collected by the marina board. Of the revenues collected:

(A) Thirty-four per cent of the gross receipts shall be used by the marina board for the expenses of managing, maintaining, and operating the harbor;

(B) Thirty-three per cent of the gross receipts shall be reimbursed to the department to retire the state debt as provided in paragraph (2); provided that at the point in time the debt is retired, one hundred per cent of the gross receipts shall be used by the marina board for the expenses of managing, maintaining, and operating the marine park; and

(C) Thirty-three per cent of the gross receipts shall be used to support the boating special fund;

(5) All registered boat owners in the marine park and the general public shall be permitted full use and enjoyment of the harbor and the waters of the State;

(6) The safety of all persons using the marine park and the protection of property in the marine park shall be maintained;

(7) The marina board shall prepare a comprehensive written policy to protect the interests of those persons who are waiting for a slip at the marina. The new policy shall not affect the rights of the current first one hundred waiting list applicants as of the effective date of the agreement;

(8) The members of the marina board shall have no material conflict of interest and shall serve without compensation;

(9) The marina board shall adopt rules and procedures for the orderly maintenance and operation of the small boat harbor, including a schedule of fines to be imposed in the event of failure to comply with applicable rules, which shall be collected by the board and used to operate the facility;

(10) The marina board shall establish a grievance procedure, under which persons aggrieved by a decision of the marina board shall submit their claims to mediation or arbitration;

(11) The marina board shall devise and implement programs to generate additional revenue within the boundaries of the marine park;

(12) The marina board shall install and maintain an environmentally sound boat and vehicle washing facility convenient to a launching ramp;

(13) Those areas of responsibility as determined by the department that cannot be assumed by the marina board shall remain under the jurisdiction of the department;

(14) The marine park shall be exempt from all state statutes applying to small boat harbors under this chapter and all rules adopted pursuant to chapter 91 to implement those statutes; provided that:

(A) The agreement between the marine park and the department shall provide that the exemption provided in this paragraph shall be phased in over a period of one year following a plan specifying details to provide for the orderly transition of management and operations; and

(B) The marine park shall comply with all other applicable federal, state, and county laws;

(15) The marina board may raise capital for improvement projects to benefit the marine park; and

(16) The contract may be terminated by the department, either in whole or in part, for the convenience of the State when the interests of the State so require; provided that the State shall give written notice of and rationale for the termination to the marina board specifying the part of the contract that is to be terminated and when termination shall become effective. The marina board may appeal this termination agreement to the board of land and natural resources.

(d) The marina board shall hire an independent auditor to conduct an annual audit of the books and records of the marina board managing the marine park and shall submit a report of its findings and recommendations to the department. The marina board seeking to manage the marine park shall be provided reasonable access to, and may examine and inspect as may be necessary, the books and records of the department to allow for the orderly and cost-effective operation and management of the marine park."

SECTION 3. Section 200-2, Hawaii Revised Statutes, is amended to read as follows:

"§200-2 Board of land and natural resources, powers and duties. The board shall have the primary responsibility for administering the ocean recreation and coastal areas programs and performing the functions heretofore performed by the department of transportation and the department of public safety in the areas of boating safety, conservation, and search and rescue[, and security of small boat harbor environs]."

SECTION 4. Section 200-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§200-3[]] Ocean recreation and coastal areas programs. The board shall assume the following functions of the department of transportation:

(1) Managing and administering the ocean-based recreation and coastal areas programs of the State;

(2) Planning, developing, operating, administering, and maintaining [small boat harbors,] launching ramps[,] and other boating facilities and associated aids to navigation throughout the State;

(3) Developing and administering an ocean recreation management plan;

(4) Administering and operating a vessel registration system for the State;

(5) Regulating the commercial use of boating facilities;

(6) Regulating boat regattas and other ocean water events;

(7) Administering a marine casualty and investigation program;

(8) Assisting in abating air, water, and noise pollution;

(9) Conducting public education in boating safety;

(10) Administering the boating special fund;

(11) Assisting in controlling shoreline erosion;

(12) Repairing seawalls and other existing coastal protective structures under the jurisdiction of the State; and

(13) Removing nonnatural obstructions and public safety hazards from the shoreline, navigable streams, harbors, channels, and coastal areas of the State."

SECTION 5. Section 200-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The chairperson may adopt rules necessary:

(1) To regulate the manner in which all vessels may enter the ocean waters and navigable streams of the State and moor, anchor, or dock at [small boat harbors,] launching ramps[,] and other boating facilities owned or controlled by the State;

(2) To regulate the embarking and disembarking of passengers at [small boat harbors,] launching ramps, other boating facilities, and public beaches;

(3) For the safety of [small boat harbors,] launching ramps[,] and other boating facilities, the vessels anchored or moored therein;

(4) For the conduct of the public using [small boat harbors,] launching ramps[,] and other boating facilities owned or controlled by the State;

(5) To regulate and control recreational and commercial use of [small boat harbors,] launching ramps[,] and other boating facilities owned or controlled by the State and the ocean waters and navigable streams of the State;

(6) To prevent the discharge or throwing into [small boat harbors,] launching ramps, other boating facilities, ocean waters, and navigable streams, of rubbish, refuse, garbage, or other substances likely to affect the quality of the water or that contribute to making the [small boat harbors,] launching ramps, other boating facilities, ocean waters, and streams unsightly, unhealthful, or unclean, or that are liable to fill up, shoal, or shallow the waters in, near, or affecting [small boat harbors,] launching ramps[,] and other boating facilities and the ocean waters and navigable streams of the State, and likewise to prevent the escape of fuel or other oils or substances into the waters in, near, or affecting [small boat harbors,] launching ramps[,] or other boating facilities and the ocean waters and navigable streams of the State from any source point, including, but not limited to, any vessel or from pipes or storage tanks upon land. The rules may include:

(A) Requirements for permits and fees for:

(i) The mooring, docking, or anchoring of recreational and commercial vessels or the launching of recreational or commercial vessels at [small boat harbors,] launching ramps[,] and other boating facilities; or

(ii) Other uses of these facilities;

[(B) Requirements for permits and fees for use of a vessel as a principal place of habitation while moored at a state small boat harbor;]

[(C)] (B) Requirements governing:

(i) The transfer of any state commercial, mooring, launching, or any other type of use or other permit, directly or indirectly[, including, but not limited to, the imposition or assessment of a business transfer fee upon transfer of ownership of vessels operating commercially from, within or in any way related to the state small boat harbors]; and

(ii) The use of [state small boat harbors,] launching ramps[,] or other boating facilities belonging to or controlled by the State, including, but not limited to, the establishment of minimum amounts of annual gross receipts required to renew a commercial use permit, and conditions under which a state commercial, mooring, launching, or any other type of use or other permit may be terminated, canceled, or forfeited; and

[(D)] (C) Any other rule necessary to implement this chapter pertaining to [small boat harbors,] launching ramps[,] and other boating facilities belonging to or controlled by the State;

(7) To continue the ocean recreational and coastal areas programs and govern the ocean waters and navigable streams of the State, and beaches encumbered with easements in favor of the public to protect and foster public peace and tranquility and to promote public safety, health, and welfare in or on the ocean waters and navigable streams of the State, and on beaches encumbered with easements in favor of the public. The rules may include:

(A) Regulating the anchoring and mooring of vessels, houseboats, and other contrivances outside of any harbor or boating facility, including:

(i) The designation of offshore mooring areas;

(ii) The licensing and registration of vessels, houseboats, and other contrivances; and the issuance of permits for offshore anchoring and mooring of vessels, houseboats, and other contrivances; and

(iii) The living aboard on such vessels, houseboats, or other contrivances while they are anchored or moored within ocean waters or navigable streams of the State.

The rules shall provide for consideration of environmental impacts on the State's aquatic resources in the issuance of any permits for offshore mooring;

(B) Safety measures, requirements, and practices in or on the ocean waters and navigable streams of the State;

(C) The licensing and registration of persons or organizations engaged in commercial activities in or on the ocean waters and navigable streams of the State;

(D) The licensing and registration of equipment utilized for commercial activities in or on the ocean waters and navigable streams of the State;

(E) For beaches encumbered with easements in favor of the public, the prohibition or denial of the following uses and activities:

(i) Commercial activities;

(ii) The storage, parking, and display of any personal property;

(iii) The placement of structures or obstructions;

(iv) The beaching, landing, mooring, or anchoring of any vessels; and

(v) Other uses or activities that may interfere with the public use and enjoyment of these beaches; and

(F) Any other matter relating to the safety, health, and welfare of the general public; and

(8) To regulate the examination, guidance, and control of harbor agents and their assistants."

SECTION 6. Sections 200-9, 200-10, 200-11, 200-12, and 200-13, Hawaii Revised Statutes, are repealed.

["§200-9 Purpose and use of state small boat harbors. (a) State small boat harbors are constructed, maintained, and operated for the purposes of:

(1) Recreational boating activities;

(2) Landing of fish; and

(3) Commercial vessel activities.

For the purpose of this section, "recreational boating activities" means the utilization of watercraft for sports, hobbies, or pleasure, and "commercial vessel activities" means the utilization of vessels for activities or services provided on a fee basis. To implement these purposes, only vessels in good material and operating condition that are regularly navigated beyond the confines of the small boat harbor, and which are used for recreational activities, the landing of fish, or commercial vessel activities shall be permitted to moor, anchor, or berth at such harbor or use any of its facilities.

(b) Vessels used for purposes of recreational boating activities which are also the principal habitation of the owners shall occupy no more than one hundred twenty-nine berths at Ala Wai boat harbor and thirty-five berths at Keehi boat harbor, which is equal to fifteen per cent of the respective total moorage space that was available as of July 1, 1976, at the Ala Wai and Keehi boat harbors. Notwithstanding the purposes of small boat harbors, moorage for commercial vessels and commercial vessel activities is not permitted in the Ala Wai and Keehi boat harbors; provided that commercial catamarans, for which valid permits or registration certificates have been issued by the department which allow the catamarans to operate upon Waikiki shore waters for hire, may be permitted to moor in Ala Wai boat harbor at facilities leased for commercial purposes. The department shall allow a sole proprietor of a catamaran operating with a valid commercial registration certificate issued by the department for a commercial catamaran to land its commercial catamaran on Waikiki beach and to operate upon Waikiki shore waters for hire, to transfer the ownership of the vessel from personal ownership to corporate or other business ownership without terminating the right to operate under the commercial registration certificate. The existing commercial registration certificate shall be reissued in a timely manner in the name of the transferee corporation or other business entity. No commercial registration issued to an owner of a commercial catamaran operating in the Waikiki area shall be denied or revoked without a prior hearing held in accordance with chapter 91.

(c) Notwithstanding any limitations on commercial permits for Lahaina small boat harbor, vessels engaging in inter-island ferry service between the islands of Maui and Molokai shall be afforded preferential consideration for both ferry landings and other commercial purposes, including the issuance of a commercial operating permit and the waiver of any applicable fees, at Lahaina small boat harbor; provided that:

(1) The vessel operator has been issued a certificate of public convenience and necessity for the purpose of engaging in inter-island ferry service between the islands of Maui and Molokai;

(2) The design and performance characteristics of the vessel will permit safe navigation within the Lahaina harbor entrance channel and safe docking along the north face of the Lahaina pier;

(3) The vessel operations will not result in unreasonable interference with the use of Lahaina small boat harbor by other vessels; and

(4) All preferential consideration and waivers, including any commercial permits issued under this section, shall cease upon the vessel operator's termination of inter-island ferry service between the islands of Maui and Molokai.

(d) The chairperson may adopt rules pursuant to chapter 91 to further implement this section.

[§200-10] Permits and fees for state small boat harbors. (a) No person shall moor a vessel in a state small boat harbor without:

(1) First obtaining a use permit from the department; and

(2) Being the owner of the vessel.

(b) In order to obtain a permit or a permit renewal, the owner of a vessel shall provide, at the owner's own expense:

(1) A marine surveyor's inspection no more than two years old, certifying that the surveyor has inspected the vessel and considers it to fulfill the requirements set by the department; and

(2) Documentation that the person is the owner of the vessel. The documentation shall meet requirements established by the department.

(c) The permittee shall pay moorage fees to the department for the use permit which shall be based on, but not limited to, the use of the vessel, its effect on the harbor, use of facilities, and the cost of administering this mooring program; and, furthermore:

(1) Moorage fees shall be established by the department and shall be higher for nonresidents;

(2) An application fee shall be collected when applying for moorage in state small boat harbors and shall thereafter be collected annually when the application is renewed. The application fee shall be:

(A) Set by the department; and

(B) Not less than $100 for nonresidents;

(3) If a recreational vessel is used as a place of principal habitation, the permittee shall pay, in addition to the moorage fee, a liveaboard fee which shall be:

(A) $5.20 a foot of vessel length a month if the permittee is a state resident; and

(B) $7.80 a foot of vessel length a month if the permittee is a nonresident;

provided that the liveaboard fees established by this subsection may be increased by the department at the rate of the annual cost-of-living index, but not more than five per cent in any one year, beginning January 1 of each year; and

(4) If a vessel is used for commercial purposes from its permitted mooring, the permittee shall pay, in lieu of the moorage and liveaboard fee, a fee based on a percentage of the gross revenues derived from the use of the vessel which shall be not less than two times the moorage fee assessed for a recreational vessel of the same size.

(d) The department shall not renew or issue a permit to a person who is not the owner of the vessel which is moored or which the person desires to moor in a state small boat harbor. Any individual who is an owner of a vessel used for commercial purposes, including commercial fishing as a principal means of livelihood, and possesses a valid mooring permit or commercial permit, or both, in accordance with the rules adopted by the chairperson pursuant to chapter 91, may transfer ownership of the vessel from personal ownership to corporate or other business ownership without terminating the right to moor or operate the vessel under the permit or permits. The existing permit or permits shall be reissued in the name of the transferee corporation or other business entity.

For the purposes of this section, "person" means any individual, firm, partnership, corporation, trust, association, joint venture, organization, institution, or any other legal entity, and "owner" includes the legal owner of a vessel where there is no security interest held by anyone on the vessel, a buyer under a purchase money security interest, a debtor under any security interest, a demise charterer of a vessel, or a lessee or charterer of a vessel under a lease or charter which provides the lessee or charterer with exclusive right to possession of the vessel to the exclusion of the lessor or the person from whom the vessel is chartered. No permittee shall be allowed to moor a leased vessel in a berth unless the terms of the lease are set at fair market value. A "legal owner" includes a person who holds unencumbered title to a vessel or is a secured party under a security interest in the vessel. An owner who is issued a permit to moor a vessel in a state small boat harbor shall notify the department in writing of a transfer of interest or possession in the vessel within seven days of transfer.

Any person owning an interest in a corporation or other business entity possessing a valid commercial permit issued by the department, in accordance with rules adopted by the chairperson pursuant to chapter 91, may transfer any or all stock or other interest to another person without terminating the right of the corporation or business entity to retain or renew its commercial permit or any other permit issued to it by the department; provided that:

(1) The corporation or business entity has been engaged in the same commercial vessel activity, as defined in section 200-9, for a minimum of one year; and

(2) The seller shall pay the department a business transfer fee based on the passenger-carrying capacity of the vessels owned or operated by the corporation or business entity as provided by rules adopted by the chairperson pursuant to chapter 91.

Any person possessing a commercial permit shall be required to meet minimum revenue standards, as a condition of retaining or renewing the commercial permit.

(e) The department may designate moorage space within state small boat harbors to accommodate commercial fishing vessels and transient vessels.

(f) All revenues from the foregoing operations shall be deposited in the boating special fund.

[§200-11] Existing permits. An owner of a vessel used as a principal place of habitation holding a permit for that use in a state small boat harbor on June 9, 1976, may continue to moor the vessel in that harbor for such purpose and be permitted to obtain a new mooring permit; provided that the owner conforms to conditions set forth in sections 200-9 and 200-10.

[§200-12] Administration of state small boat harbors. The department shall include a separate administrative unit which shall administer the state small boat harbors and the state comprehensive recreational boating program. The unit shall:

(1) Adopt necessary rules under section 200-4 for the purposes of this section;

(2) Organize a comprehensive recreational boating program; and

(3) Develop standard permits, and fees, for moorage in state small boat harbors to comply with section 200-10.

§200-13 Marine inspections. (a) The department shall:

(1) Develop a list of minimum requirements for the marine inspection of vessels seeking permits to moor in state small boat harbors;

(2) Approve qualified marine surveyors to inspect vessels seeking permits to moor in state small boat harbors; and

(3) Approve a fee schedule for marine surveyors' inspections.

(b) Vessels failing the marine inspection for a permit or a permit renewal shall have thirty days to correct deficiencies and complete the inspection.

(c) Owners of vessels that fail the marine inspection may contest the inspection before an arbitration board of three inspectors approved by the department. The inspector who performed the original inspection shall not be a member of the arbitration board."]

SECTION 7. Section 200-16, Hawaii Revised Statutes, is amended by amending the section heading and subsection (a) to read as follows:

"§200-16 Mooring of unauthorized vessel in [state small boat harbors and] offshore mooring areas; impoundment and disposal proceedings. (a) No person shall moor a vessel in [a state small boat harbor or] an offshore mooring area without obtaining a use permit; nor shall a person continue to moor a vessel in any [state small boat harbor or] offshore mooring area if the use permit authorizing the vessel to moor has expired or otherwise been terminated. A vessel moored without a use permit or with a use permit that has expired or been terminated is an unauthorized vessel and is subject to this section."

SECTION 8. The auditor shall determine the amount of state debt outstanding which is attributable to the maintenance and repair of the marina facility in accordance with a schedule to be determined by the department and the marina board.

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.

INTRODUCED BY:

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