A. Legal Authority

• Chapter 205, HRS, as amended , Land Use Commission
• Chapter 183C, HRS, as amended, Forest Reservations, Water Development, Zoning
• Chapter 190 D, HRS, Ocean and Submerged Lands Leasing
• Title 13, Chapter 5, HAR, Department of Land and Natural Resources, Providing for Land Use Within the Conservation District

Information:

• https://www.capitol.hawaii.gov/hrscurrent/vol04_ch0201-0257/hrs0205/hrs_0205-.htm
• https://files.hawaii.gov/luc/docs/hrs_183c.pdf
• https://dlnr.hawaii.gov/occl/files/2013/08/CHAPTER-190D.pdf
• https://dlnr.hawaii.gov/occl/files/2013/08/HAR-13-5-2021.pdf

B. Purpose

The Land Use Commission (LUC) classifies all lands in the state as Urban, Rural, Agricultural, or Conservation. The Conservation District (CD) includes areas necessary for the purpose of conserving, protecting, and preserving the important natural resources of the state through appropriate management and use to promote their long-term sustainability and the public health, safety, and welfare. The CD not only includes the designated land areas, but also includes most of the state’s submerged land and outlying small islands. The Board of Land and Natural Resources (BLNR) that manages DLNR regulates activity within the CD. The Department requires that a CDUP be approved prior to any use of land or submerged land. DLNR has developed a separate CDUA for state marine waters.

C. Applicability to Aquaculture

Anyone proposing to conduct marine activities (including ocean thermal energy conversion, commercial mariculture, and other energy or water research, scientific, and educational activities) in, on, or under state marine waters or submerged lands is required to submit a CDUA for BLNR approval. The CD includes most of the state’s submerged land. Also termed state marine waters, they are defined as all waters of the state, including the water column, water surface, and 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 (Chapter 190 D, HRS).

All state marine waters are placed in the Resource Subzone of the CD. The objective 48 of this subzone is to develop areas to ensure sustained use of natural resources (e.g., future park land, lands for growing and harvesting of timber, outdoor recreation, and ocean waters). Aquaculture is a permitted use in the Resource subzone, therefore offshore mariculture (salt water aquaculture) is a permitted use of state ocean waters. According to the law, mariculture means the aquaculture, cultivation and production for research, development, demonstration and commercial purposes of aquatic plants and animals within state marine waters, but excludes floating structures that are not anchored.

Generally, as with land sites, the BLNR uses the following guidelines in considering approval of CDUP applications:

• Objectives of the subzone are given primary consideration;
• Any physical hazard identified shall be alleviated when required by the BLNR;
• Applications shall meet the purpose and intent of the CD;
• Any person who has obtained an approved CDUA for marine activities in state marine waters or submerged lands must enter into a lease for the conduct of those activities;
• An application shall not be approved if in so doing it would fail to protect the public’s use and enjoyment of the reefs in state marine waters.

D. Administering Department

The CDUA is administered by the DLNR, Office of Conservation and Coastal Lands (OCCL). The BLNR has the sole responsibility for approving a CDUA and has the option of attaching governing and legally binding conditions to the resulting permit.

Office of Conservation and Coastal Lands
Department of Land and Natural Resources
Kalanimoku Building, Room 131
1151 Punchbowl Street
Honolulu, Hawaiʻi 96813
Phone: (808) 587-0377
E-mail: dlnr.occl@hawaii.gov
Web site: www.hawaii.gov/dlnr/occl

E. Information Requirements

A detailed application form for use of marine waters is available from DLNR and on the OCCL web site. The application differs somewhat from the CDUA for land sites and includes additional information specific to mariculture and the requirements of Chapter 190 D HRS. As with the request for a land site, an application for an ocean site requires preparation of a draft EA, and if necessary, an EIS. The information needs are briefly highlighted below, under four categories:

• Chapter 190 D requirements include, but are not limited to: a) location, size and boundaries of state marine waters used and the nature of the intended use; b) extent the proposed project requires exclusive use; c) reasons for selection of the proposed location; d) general description of the activities and whether they will be commercial; e) existing uses of the proposed site and impacts of the project; f) impacts of the project on the environment; and g) capacity of the applicant to carry out the entire project.
• CD requirements include, but are not limited to addressing: a) project consistency with the purpose of the CD and objectives for the subzone; b) how potential adverse impacts will be mitigated; and c) how the proposed use will not materially be detrimental to the public health, safety, and welfare.
• Additional information requirements include, but are not limited to: a) a cultural resources assessment; b) feasible actions to reasonably protect native Hawaiian rights; c) impacts on public access to the shoreline; and d) impacts on viewscape for any individual or community.
• Requirements applicable to mariculture projects include, but are not limited to: a) physical description of the size of the site and infrastructure; b) how will the project limit public access to the area and how will the public be notified of the limitations; c) what are the existing uses and how will ocean use be managed in the area; d) describe any impacts on rare, threatened and endangered species; e) describe the features of the benthic habitat in the area; and f) a detailed Management Plan for the project that includes construction and operational details and a time table.

F. Public Participation

A Public Hearing is required for all applications for use of state marine waters involving the following:

• Use(s) for commercial purposes, e.g., commercial aquaculture;
• Change of subzone(s) or boundaries;
• Use(s), as determined by the Chairperson, where the scope of the proposed use or the public interest, require one.

G. Process Time

The processing time for a CDUA is 180 days from the date the application is officially received. If the application is for state lands under the control of DLNR, i.e. in this case an ocean site, the processing time starts when the Chairperson of the BLNR signs the application as the land owner. The application is considered during regularly scheduled public meetings of the BLNR. If the BLNR fails to act within 180 days after the receipt of an application, the applicant may automatically put the land to the proposed use, subject to the conditions outlined in §13- 2-21, HAR. If the application involves an EIS or a contested case hearing (see §91-9 HRS), the 180-day period may be extended for an additional 90 days at the request of the applicant, or, subject to approval by the BLNR, for a longer period.

H. Sequence of Filing

The BLNR will not act on an application until the environmental review process has been completed and a determination made, and if applicable, a Special Management Area Permit, Shoreline Setback Variance, Department of Health approval of sanitation facilities, and water supply permits or approvals have been obtained.

I. Cost

The cost of assembling the information required to supplement the CDUP application, e.g., EA or EIS, can be substantial depending on the size of the property, the complexity of the proposed development, the surrounding environmental conditions, and community concerns. All CDUA fees shall be in the form of cash, certified or cashier’s check, and payable to the State of Hawaiʻi. The various fee categories are listed below.

• Board Permit – $100 application fee, plus an additional $100 per potential developed acre, or major fraction thereof, up to a maximum of $2,000;
• Department Permit – $50 application fee;
• Site Plan Approval – $50 fee;
• Subzone Boundary Determination – $50 fee;
• Emergency Permit – Waived;
• Temporary Variance – $100 fee;
• A fee of $250 will be required for a public hearing.