The Board of Land and Natural Resources Friday approved a request to initiate rule-making proceedings for managing commercial surf schools at Kahalu‘u Bay.
Following about 15 minutes of presentation and discussion, the board voted 5-2 to approve the request with Chairperson Suzanne Case and members Chris Yuen, Samuel Gon III, Wesley Yoon and Vernon Char voting “aye.” Tommy Oi and Pua Canto, the board’s newest member, voting “nay.”
The board’s approval to take the proposed rules to public hearing is among the first steps in the process of amending Hawaii Administrative Rules. The rules will next be sent for review by the Department of the Attorney General before public hearings are set.
Following public hearings, the rule may be revised, if necessary, and then submitted back to the board for final approval. Upon approval from the board, the Attorney General will review the rules again before transmitting it to the governor for his signature and filing with the lieutenant governor.
At that point, the rules have the effect of law.
Under the proposed rules dated Feb. 2, the Department of Land and Natural Resources Division of Boating and Ocean Recreation would be authorized to issue up to eight permits for commercial surf school instruction, an increase from the current four permitted by rules established in 2016.
Though there would be more companies permitted to operate in the bay overall, the rules would create two instruction periods for the bay, spreading out the impact. Four commercial surf schools would be permitted to operate from 8 a.m. to noon and the other four from 1-5 p.m.
The draft rules would also change the number of students allowed in the water. Currently, each instructor can have four students, or up to eight students per surf school permit, in the water at any given time for a total of 32.
Under the draft rules, the number of students would be tied to the permit, not instructor, thus being limited to four in the water at any time per permit for a total of 16.
The permits would be issued via lottery, Meghan Statts, DOBOR assistant administrator, told the board Friday, noting the division was unsuccessful in getting legislative approval this past session to award the permits via auction.
“The Legislature had concerns with the auction process and they wanted us to look at who was in business first, but we would need to amend the Hawaii Revised Statutes in order to do that,” DOBOR Administrator Ed Underwood explained. “We’re working on that now and hopefully we’ll get that in for the next session.”
Yuen then asked if it would be a better option to delay the rule-making process in favor of going back to the Legislature.
“It could (be an option), but unfortunately what we’re having right now is a very big issue with commercial activity and there’s approximately between 15 and 16 surf schools that are out there so we really need to push forward with enacting or going through the public hearing process to issue these permits,” Statts said. “We’re getting a lot of push and request from the county, as well as community members.”
Several board members raised concerns over how the state would maintain a waiting list for companies outside the eight selected for permits, particularly after learning those permits can be transferred with the sale of a company.
“You said that the licenses can be transferred; in reality do we need a waitlist?” Oi asked.
Policing was also a worry for members, given the area is under dual government oversight with the DLNR’s DOBOR jurisdiction ending at the high-water mark and the county’s jurisdiction covering land.
“In my discussions with the county, it would be a shared responsibility. We could handle some of the stuff in the ocean water, but the Hawaii Police Department and that county parks department would work in dealing with the operators that are on their property and parking on the street,” Statts said.
The DLNR, Hawaii County and other stakeholders have been discussing since at least 2015 the issue of regulating commercial surf instruction at Kahalu‘u Bay, though the issue comes up in West Hawaii Today archives as early as 2004-05.
Initially, Hawaii County was to take the lead in limiting access to Kahalu‘u Bay ocean waters and enforcing those limitations, however, after learning it was not the permitting authority no permits were issued.
The state took the lead on permitting commercial surf schools at Kahalu‘u Bay in 2019 after an agreement was reached after state and county officials met in June 2019 at the request of the state Legislature.
“This is just a classic discussion on this — we have been wrestling with this for some years,” Case said. “If you propose auction, some businesses are afraid they won’t be able to compete financially. If you propose, first-come-first-serve, then the businesses that want to come later feel shut out of the process. If you propose lottery then whoever wants to do it can, which can shut out the businesses that have been operating for a long time. … When you already have too many businesses operating or wanting to operate in an area, it’s very hard to find a fair way to limit it.”