What are the permit requirements for restoring and operating a loko iʻa?

By Sharla Manley, NHLC Of Counsel Attorney

Loko iʻa (fishponds) are integral to watershed management, environmental remediation, and food sovereignty. Restoring them is a critically important matter across the pae ʻāina.

For decades, loko iʻa advocates have fought for reasonable permitting processes for restoration. Sadly, these processes have historically been difficult, resource intensive, and lengthy with requirements at the county, state, and federal level. Meaningful reforms in the last 20 years foster hope, but the permit process continues to be complicated depending on numerous factors that differ from site to site.

In 1995, the state enacted Act 177 that created an exemption from state environmental review law for permits to reconstruct, restore, repair or use a Hawaiian fishpond if the following criteria were met:

1. The fishpond is not adjacent to a sandy beach;
2. The fishpond stocks only native aquatic organisms;
3. The fishpond stock does not require frequent artificial feeding, artificial aeration of water, or artificial pumping of water;
4. Bulk chemicals are not added to the water for pathogen control;
5. Coastal access is allowed;
6. The fishpond does not harm any threatened or endangered species; and
7. The fishpond is not used for water recreation.

The Legislature recognized that the “plethora” of regulations implicated by fishpond restoration “inhibits their revitalization throughout the State” and found that loko iʻa are one of “the most traditional means of ensuring a source of sustenance on a daily basis” and “continues to represent a viable source of sustenance for the people of the State.”

Thus, Act 177 was intended to honor the state’s constitutional obligation “to protect and preserve the natural resources of the State and the customary rights exercised by the aboriginal people of Hawaiʻi for the purposes of subsistence.”

In 2015, the state and federal governments took another big step forward by adopting Hoʻāla Loko Iʻa, a streamlined permitting process for restoring and maintaining fishponds on state lands classified as conservation.

This process allows the Office of Conservation and Coastal Lands (within the Department of Land and Natural Resources) to review and approve restoration or repair permits against several state and federal regulatory requirements, including the Department of Health’s water quality certification process under Section 401 of the Clean Water Act. Since enacted, the state has approved 24 fishpond permits using this process.

While these changes are simplifying state and federal permitting processes for fishponds in conservation districts, the process does not apply to loko iʻa in urban, agricultural, or rural districts.

Under the state’s Coastal Zone Management Act (CZMA), a SMA permit is required before a “development” may proceed. This law was amended in July 2023 to clarify that traditional fishpond practices are not considered “development” for purposes of triggering the SMA permit requirement. This specific exemption applies to “all traditional fishpond and traditional agricultural practices.”

Counties, however, may still require an SMA permit, thus posing an additional hurdle.

Overall, regulatory challenges are easing thanks to the ʻonipaʻa (steadfast) efforts of fishpond stewards advocating for change, but it remains a complex process with many challenges. Federal, state, and county agencies need to continue scrutinizing their processes and requirements with community to remove unnecessary obstacles to the restoration of loko iʻa across the state.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.