STAND. COM. REP. NO. 862-04

Honolulu, Hawaii

, 2004

RE: S.B. No. 1556

S.D. 2

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Water, Land Use, and Hawaiian Affairs, to which was referred S.B. No. 1556, S.D. 2, entitled:

"A BILL FOR AN ACT RELATING TO COASTAL ZONE MANAGEMENT,"

begs leave to report as follows:

The purpose of this bill is to increase the accuracy of determining shorelines for shoreline certification and setback purposes by:

(1) Redefining "shoreline" as the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs; provided that for public utilities, the "shoreline" means the upper reaches of the wash of the waves;

(2) Designating qualified DLNR employees as the "state shoreline locators" to determine the location of the shoreline;

(3) Providing an appeal process for shoreline certifications;

(4) Appropriating funds for a videographic study of the upper reaches of high seasonal surf around the State; and

(5) Requiring:

(A) The Board of Land and Natural Resources (BLNR) and the University of Hawaii to develop guidelines for determining and certifying the shoreline, which must be used by state shoreline locators;

(B) Public notice be given when a locator goes on-site;

(C) Registered land surveyors to map and survey shorelines; and

(D) Shoreline certification applicants to provide notice of the application to various parties, including abutting shoreline property owners and the state Surveyor's Office.

For purposes of the public hearing and receiving testimony, your Committee circulated and made available for public review a proposed H.D. 1 that deleted the contents of this bill and inserted the provisions of H.B. No. 1275 H.D. 1, with revisions. The purposes of the proposed H.D. 1 are to:

(1) Clarify the definition of "shoreline" and to protect resources that rightfully belong within the public trust;

(2) Require notice of shoreline certification applications; and

(3) Provide for the revocation of a certain shoreline certifications.

Specifically, the proposed H.D. 1:

(1) Redefines "shoreline" as the uppermost reach of the wash of the waves, other than storm or seismic waves, during the season of the year in which the highest wash of the waves occurs, usually evidenced by the resultant debris line or the first stable vegetation, whichever is furthest mauka or inland; provided that the vegetation is not influenced or modified by human intervention;

(2) Requires an applicant for shoreline certification to provide copies of the application, including maps and photographs, to:

(A) Abutting shoreline property owners;

(B) The Office of Environmental Quality Control for publication in its periodic bulletin; and

(C) The county planning agency;

(3) Increases the shoreline certification validity period to 18 months; and

(4) Authorizes the state Surveyor to review any shoreline certification during its validity period and rescind the certification if there is a substantial misrepresentation of a material fact in the original application, whether intentional or unintentional.

The Sierra Club, Hawaii Chapter, Hawaii Reserves, Inc., and a concerned individual supported this bill. The Hawaii Audubon Society and two concerned individuals supported this measure with amendments. BLNR, Office of Planning (OP), Office of Hawaiian Affairs, Hawaii Association of Realtors, and the Land Use Research Foundation of Hawaii opposed this bill. The Hawaii Leeward Planning Conference and a concerned individual submitted comments on this measure.

Your Committee finds disturbing DLNR's rules and its implementation relating to the determination of the shoreline. Its rules and practices, contrary to section 205A-1, Hawaii Revised Statutes (HRS), prefer the vegetation line in determining the shoreline. There should be no preference in implementing existing section 205A-1, HRS, which reads in pertinent part:

"Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.

DLNR's rules, defining "shoreline," section 13-222-2, Hawaii Administrative Rules, reads in pertinent part:

"Shoreline" means the upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or where there is no vegetation in the immediate vicinity, the upper limit of debris left by the wash of the waves. (emphasis added)

By adding the words "or where there is no vegetation in the immediate vicinity," DLNR created an inadmissible preference for the vegetation line over the debris line in locating the shoreline.

It is axiomatic that an administrative rule cannot contradict or conflict with the statute it attempts to implement. However, your Committee finds that DLNR's rules defining "shoreline" violates statutory provisions all to the detriment of an important public trust resource, Hawaii beaches and shoreline, thereby exceeding the statutory authority of the agency. Based on the public trust doctrine, it is paramount that the long standing public policy to extend to public use and ownership as much of Hawaii's shoreline as is reasonably possible be reiterated and reenforced.

Upon further consideration, your Committee has incorporated the contents of the proposed H.D. 1 and further amended this bill by:

(1) Redefining "shoreline" to mean the uppermost reach of the wash of the waves, other than storm and seismic waves, during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves, whichever is furthest mauka or inland; provided that the vegetation is not influenced or modified by human intervention;

(2) Prohibiting the growing of vegetation by human intervention to establish a shoreline and prohibiting that vegetation line from consideration in the shoreline certification process;

(3) Changing the shoreline certification validity period back to twelve months; and

(4) Making technical, nonsubstantive amendments for clarity, style, and consistency.

As affirmed by the record of votes of the members of your Committee on Water, Land Use, and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 1556, S.D. 2, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 1556, S.D. 2, H.D. 1, and be referred to the Committee on Finance.

Respectfully submitted on behalf of the members of the Committee on Water, Land Use, and Hawaiian Affairs,

 

____________________________

EZRA R. KANOHO, Chair