You can get all kinds of permits at the Department of Land and Natural Resources. There are permits for park concessions, camping, fishing, boating, mooring, Conservation District uses…
But if you’re a commercial operator and you want to run a surf school, or a kayak tour, or conduct weddings on or from a beach other than Waikiki or Ka’anapali, there is no permit for you. And that’s a big problem for the state because without a permitting system for beaches, the DLNR claims, it can’t enforce its rules banning commercial uses on state lands without a permit from the Board of Land and Natural Resources. In the meantime, the state is seeing a growing number of user conflicts in nearshore waters as beach and ocean-based commercial operations proliferate.
Beaches are considered unencumbered state lands, which are administered by the DLNR’s Land Division. Unlike the DLNR’s Parks Division, Office of Conservation and Coastal Lands, Division of Aquatic Resources, Natural Area Reserves System Program, and Division of Boating and Ocean Recreation, the Land Division doesn’t have a permitting system for activities. So when the Board of Land and Natural Resources voted in November 2002 to prohibit commercial activity in forest reserves, state parks, natural area reserves, and on unencumbered state lands unless a permit had been issued for it, the Land Division was unprepared.
The Land Division’s lack of a permitting system has left a huge gap into which the commercial vendors have leapt. At the Land Board’s September 10 meeting, Land Division administrator Dierdre Mamiya briefed the board on her division’s efforts to deal with proposed commercial permitting rules since they had been presented at public hearings on February 5.
Those who showed up at the hearings, simultaneously held on O’ahu, Maui, Kaua’i and Hawai’i, criticized everything from the general motive behind the rules (to cater to commercial users, some said), to the approval and revocation method (the Land Board chair has total authority, the automatic approval period is too short, and the public has no opportunity to comment on applications), to the lack of protections for Native Hawaiian rights.
After evaluating the public feedback, Mamiya said she questioned whether the Land Division is the appropriate agency to deal with beach issues. Her division “manages public lands by acquiring and disposing of real property interests,” she said in her report prepared for the board, and is not prepared to “enter the realm of activity regulation.”
“I don’t know if we have the expertise,” she told the Land Board. She also noted that requiring a permit from the Land Division would be just another layer of bureaucracy.
“Commercial activities along the shoreline normally entail activities originating from the land side, traversing and perhaps using the beach and then entering the ocean. Some activities may remain on the landside (e.g., activities in county or state parks) or on the beach (e.g., weddings). Because of this, vendors may be confronted with up to three or more different sets of regulations… In other areas, there may also be Marine Life Conservation Districts or Natural Area Reserves that provide additional layers of regulations.
“To add another set of regulations for the thin strip of land known as the beach does not appear to make much sense, particularly when efforts are being made by both the landside and waterside jurisdictional agencies to regulate commercial activities. Such a framework creates confusion for vendors as well as problems for enforcement as different rules must be consulted and applied…. Ideal management of the coastlines would emphasize consolidation of regulations as much as possible,” she wrote.
Instead of revising the proposed rules and continuing with the rulemaking process, Mamiya presented the following alternatives:
o If there is a state or county park landward of the beach, extend the executive order establishing the park boundary into the water. That way, operators without permits from the park cannot simply scoot their operations onto the beach. Honolulu and Maui counties support this concept, Mamiya said. Hawai’i and Kaua’i do not because “they say they don’t have enforcement officers.”
o Place beaches under DLNR’s Division of Boating and Ocean Recreation jurisdiction through an executive order. DOBOR already issues commercial use permits for boaters using small boat harbors, boat launch ramps and associated facilities, and those operating in an Ocean Recreation Management Area. In waters off Waikiki and Ka’anapali, DOBOR requires a special operator’s permit. All of these permits are issued administratively and require the permittee to pay the higher of a flat fee or two percent of gross receipts. These permits are not required for businesses renting snorkeling or body-boarding equipment.
o Set up a new division to administer ocean activity regulations, which would create a centralized permitting agency, as opposed to having to get permits from various DLNR and county agencies.
o Give jurisdiction of the beaches to the counties. Although Mamiya presented this as a possibility, she noted it is not likely to occur, given that all counties oppose the idea.
After Mamiya’s presentation, Carol Wilcox, who has a long history of concern over conflicts stemming from commercial use of beaches, going back to the earliest days of Zodiac boats launching in Hanalei, testified that DOBOR’s “prime purpose is to commercialize. It does not have a conservation bone in its body. Before you turn over jurisdiction, you need to address this.”
Whichever division or agency is eventually tasked with regulating beach activity, Wilcox called for a blanket prohibition of commercialization on the beach.
“Commercialization leads to privatization,” she said.
For Waikiki and Ka’anapali, it’s too late to institute such a ban, she said. But in other areas, if a company needs to transit the beach, it should have a permit from the agency that has jurisdiction over the company’s landside activities or disembarkation point, she said. Those permits, she added, should be approved by the Land Board and not by DLNR staff. The permits also should not carry any vested rights, she said.
When Land Board member Tim Johns asked Mamiya what the DLNR should do while it grapples with how to address commercial uses of the beach, Mamiya suggested perhaps a consultant should be hired.
Robert Gentry, a Waikiki resident, president of the Gold Coast Neighborhood Association and former mayor and council member of a city in California, suggested that the DLNR look at the California Coastal Commission, which oversees a variety of coastal issues, not just commercial activity, as a model.
Gentry also said the state needs to identify areas that are appropriate for commercial activity, those that are not, and work from there.
Missing from the board’s briefing was any discussion of who does have the expertise and the authority to address marine habitat issues: the DLNR’s Division of Aquatic Resources. While the DAR issues permits for research, fishing, and the like, it has effectively ceded its authority to protect marine habitats from commercial and recreational uses to DOBOR and State Parks.
In two cases, however, at Maui’s ‘Ahihi-Kina’u Natural Area Reserve (technically under the authority of the DLNR’s Division of Forestry and Wildlife) and at O’ahu’s Makua Beach (under the jurisdiction of State Parks), the DLNR has attempted to incorporate DAR’s expertise into the permitting process. Although neither area is unencumbered state land, both face similar issues of overuse by various groups, including kayak tour operators.
The DLNR has sent DAR aquatic biologist Dave Gulko to both these areas to assess the impacts commercial activities are having or may have on the marine environment. At Makua, Gulko was joined by staff from DOBOR, the Division of Conservation and Resources Enforcement, and State Parks.
“Prior to issuing concessions for kayaks, we have and plan to continue to have aquatic resources biologists go out and investigate the area,” says DLNR director Peter Young. “At ‘Ahihi-Kina’u, our biologist went out and came up with recommendations. [Currently, commercial kayaking is banned from the ‘Ahihi-Kina’u area while broader user issues are being worked out.] When we issued the concession at Makua [for a kayak operation at Ka’ena State Park], our biologist went out first… and we implemented their recommendations into the concession agreement.”
Young says that this type of approach could be used in other areas as well.
— Teresa Dawson
Volume 15, Number 4 October 2004
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