STAND. COM. REP. NO. 167
Honolulu, Hawaii
, 2005
RE: H.B. No. 1020
H.D. 1
Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twenty-Third State Legislature
Regular Session of 2005
State of Hawaii
Sir:
Your Committee on Water, Land, & Ocean Resources, to which was referred H.B. No. 1020 entitled:
"A BILL FOR AN ACT RELATING TO COASTAL ZONE MANAGEMENT,"
begs leave to report as follows:
The purpose of this bill is to:
(1) Prohibit shoreline planting by abutting landowners to expand their property; and
(2) Authorize the State Land Surveyor to rescind a shoreline certification,
by clarifying the definition of "shoreline."
The Hawaii Chapter of the Sierra Club, Hawaii's Thousand Friends, and a community member testified in support of this bill. The University of Hawaii Environmental Center and the Hawaii Association of Realtors supported the intent of this bill. The Office of Hawaiian Affairs supported this bill with amendments. The Department of Land and Natural Resources (DLNR) and the Land Use Research Foundation of Hawaii opposed this bill.
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.
By adding the words "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" violate statutory provisions 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 longstanding public policy to extend to public use and ownership as much of Hawaii's shoreline as is reasonably possible be reiterated and reinforced.
Your Committee feels this is such an important matter that it has amended the effective date to July 1, 2006, to promote further discussion.
As affirmed by the record of votes of the members of your Committee on Water, Land, & Ocean Resources that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1020, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1020, H.D. 1, and be referred to the Committee on Judiciary.
Respectfully submitted on behalf of the members of the Committee on Water, Land, & Ocean Resources,
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____________________________ EZRA R. KANOHO, Chair |
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