DLNR clarifies Ocean Commercial Use Permitting following series of judicial actions

The DLNR Division of Boating and Ocean Recreation (DOBOR) has issued a clarification on the status of Commercial Use Permits (CUPs) following a series of judicial actions.

The department reports: “At this time, no new CUPs will be issued, pursuant to the court’s order in Nā Papaʻi Wawae ʻUlaʻula, et al. v. DLNR, Case No. 2CC-17-1-000483. Existing permits in good standing will continue to be renewed and at this time, permittees will only be allowed to maintain current activity and/or passenger capacity levels, or reduce existing levels.  DOBOR will continue to allow vessel substitutions, but will not authorize increases in passenger capacity levels, regardless of vessel size.”

Permittees planning to upgrade their vessels are advised to ensure that Certificates of Inspection show a passenger carrying capacity that is the same as, or lower than, what is permitted as of Dec. 4, 2024, the date that the court issued its order.

“The department’s stance on maintaining current activity and/or passenger capacity levels is to ensure that the department does not take any actions that can be construed as contrary to the court’s order,” according to a DLNR news release.

The lawsuit, originally filed in 2017, and after a series of legal proceedings, culminated in the December ruling by the Second Circuit Court prohibiting DOBOR from issuing or renewing CUPs for activities in Kāʻanapali ocean waters off West Maui until what’s known as a Hawai’i Revised Statutes (HRS) Chapter 343 environmental review is completed, or until a determination is made that the activities are exempt from environmental review.

Following the court’s ruling last December, DLNR filed a motion for reconsideration of the decision, informing the court that some commercial operators would be immediately and unfairly impacted if unable to renew their CUPs.

As a result, the court stayed its prohibition on renewing CUPs until a reconsideration hearing takes place. The court also maintained its prohibition on new CUPs. The reconsideration hearing, initially scheduled for February, has been rescheduled a number of times at the request of the plaintiffs, and DLNR did not object. Most recently, a continuation was approved until September of this year.

In a March 27 letter from DLNR Chair Dawn Chang to the Chairs of the House Water & Land and Energy & Environmental Protection Committees, she explained: “The initial scope of the litigation targeted six CUPs issued by DOBOR, but the court’s immediate decision also affects the renewal of over 30 active DOBOR CUPs for Kāʻanapali ocean waters. The department believes that the court’s ruling has broad implications beyond commercial activities in Kāʻanapali ocean waters and could have statewide implications to other commercial activities permitted or authorized by the department as a whole.”

DLNR reports it “intends to fully comply with HRS Chapter 343 requirements and will continue working toward properly managing commercial activities while remaining in compliance with the law.”

Depending on which environmental review may be required, or which activities may be exempted, “an Environmental Assessment, Environmental Impact Statement (EIS), or a programmatic environmental review, could take six months for an exemption, to as long as six years for an EIS,” according to DLNR.

Chang added, “We realize the potential impacts of the court’s decision could have significant economic impacts on many permittees and businesses, however the DLNR needs to comply with the law.”