Report Title:

Shoreline Setback

Description:

Improves and updates provisions for the management of coastal zones.  (SB468 HD2)

THE SENATE	S.B. NO.	468
TWENTY-FIFTH LEGISLATURE, 2009		S.D. 1
STATE OF HAWAII		H.D. 2

A BILL FOR AN ACT

RELATING TO COASTAL ZONE MANAGEMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 46-6.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Each county shall adopt ordinances which shall require a [subdivider] landowner or developer, as a condition precedent to final approval of a subdivision, in cases where public access is not already provided, to [dedicate]:

(1) Dedicate land for public access by right-of-way or easement for pedestrian travel from a public highway or public streets to the land below the [high-water mark] shoreline, as defined in section 205A-1 on any coastal shoreline[, and to dedicate]; and

(2) Dedicate land for public access by right of way from a public highway to areas in the mountains where there are existing facilities for hiking, hunting, fruit-picking, ti-leaf sliding, and other recreational purposes, and where there are existing mountain trails.

The county shall ensure that there is reasonable street parking near public access areas in the special management areas under chapter 205A."

     SECTION 2.  Chapter 205A, Hawaii Revised Statutes, is amended as follows:

     1.  By amending the definition of "agency" in section 205A-1 to read:

     ""Agency" means any agency, board, commission, department, or officer of a county government or the state government, including the authority as defined in [part] parts II[;] and III;"

     2.  By amending subsections (b) and (c) of section 205A-2 to read:

     "(b)  Objectives.

     (1)  Recreational resources;

         (A)  Provide coastal recreational opportunities accessible to the public.

     (2)  Historic resources;

         (A)  Protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.

     (3)  Scenic and open space resources;

         (A)  Protect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources.

     (4)  Coastal ecosystems;

         (A)  Protect valuable coastal ecosystems, including beaches, reefs, and dunes from disruption and minimize significant adverse environmental or ecological impacts on all coastal ecosystems.

     (5)  Economic uses;

         (A)  Provide public or private facilities and improvements important to the State's economy in suitable locations.

     (6)  Coastal hazards;

         (A)  Reduce hazard to life and property from coastal hazards, including tsunami, [storm waves, stream flooding,] hurricanes, wind, waves, flooding, erosion, sea-level rise, subsidence, and point and nonpoint source pollution.

     (7)  Managing development;

         (A)  Improve the development review process, communication, and public participation in the management of and planning for the development of coastal resources and hazards[.] mitigation.

     (8)  Public participation;

         (A)  Stimulate public awareness, education, and participation in coastal management.

     (9)  Beach protection;

         (A)  Protect beaches and coastal dunes for public use and recreation[.] against coastal hazards.

    (10)  Marine resources;

         (A)  Promote the protection, use, and development of marine and coastal resources to assure their sustainability.

     (c)  Policies.

     (1)  Recreational resources;

         (A)  Improve coordination and funding of coastal recreational planning and management; and

         (B)  Provide adequate, accessible, and diverse recreational opportunities in the coastal zone management area for the general public by:

              (i)  Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas;

             (ii)  Requiring repair, restoration, or replacement of coastal resources having significant recreational value including[, but not limited to,] coral reefs, surfing sites, fishponds, coastal dunes, and [sand] beaches, when [such] the resources will be unavoidably damaged by development; or requiring reasonable monetary compensation to the State for recreation when repair, restoration, or replacement is not feasible or desirable;

            (iii)  Providing and managing adequate public access, consistent with conservation of natural resources, to and along all shorelines with recreational value;

             (iv)  Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation;

              (v)  Ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources;

             (vi)  Adopting water quality standards and regulating point and nonpoint sources of pollution to protect, and where feasible, restore the recreational value of coastal waters;

            (vii)  Developing new shoreline recreational opportunities, where appropriate, such as artificial lagoons, artificial beaches, and artificial reefs for surfing and fishing; and

           (viii)  Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits by the land use commission, board of land and natural resources, and county authorities; and crediting such dedication against the requirements of section 46-6.

     (2)  Historic resources;

         (A)  Identify and analyze significant archaeological resources;

         (B)  Maximize information retention through preservation of remains and artifacts or salvage operations; and

         (C)  Support state goals for protection, restoration, interpretation, and display of historic resources.

     (3)  Scenic and open space resources;

         (A)  Identify valued scenic resources in the coastal zone management area;

         (B)  Ensure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline;

         (C)  Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources[;], and public access to those resources; and

         (D)  Encourage those developments that are not coastal dependent to locate in inland areas.

     (4)  Coastal ecosystems;

         (A)  Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

         (B)  Improve the technical basis for natural resource management;

         (C)  Preserve [valuable] coastal ecosystems, including beaches, reefs, [of significant biological or economic importance;] and dunes;

         (D)  Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; [and]

         (E)  Promote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystems and maintain and enhance water quality through the development and implementation of point and nonpoint source water pollution control measures[.]; and

(F) Prevent the grading or destruction of any primary coastal dune.

     (5)  Economic uses;

         (A)  Concentrate coastal dependent development in appropriate areas;

         (B)  Ensure that coastal dependent development such as harbors and ports, and coastal related development such as visitor industry facilities and energy generating facilities, are located, designed, and constructed to minimize adverse social, visual, and environmental impacts in the coastal zone management area; and

         (C)  Direct the location and expansion of coastal dependent developments to areas presently designated and used for such developments and permit reasonable long-term growth at such areas[,] with consideration of sea-level rise, and permit coastal dependent development outside of presently designated areas when:

              (i)  Use of presently designated locations is not feasible;

             (ii)  Adverse environmental effects and exposure to negative impacts related to sea-level rise are minimized; and

            (iii)  The development is important to the State's economy[.], infrastructure, or utilities.

     (6)  Coastal hazards;

         (A)  Develop and communicate adequate information about [storm wave,] tsunami, [flood,] hurricanes, wind, waves, flooding, erosion, sea-level rise, subsidence, and point and nonpoint source pollution hazards;

         (B)  [Control] Engage in early planning and control development in areas subject to [storm wave,] tsunami, [flood,] hurricanes, wind, waves, flooding, erosion, [hurricane, wind,] sea-level rise, subsidence, and point and nonpoint source pollution hazards;

         (C)  Ensure that developments comply with requirements of the [Federal] National Flood Insurance Program; and

         (D)  Prevent coastal flooding from inland projects.

     (7)  Managing development;

         (A)  Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;

         (B)  Facilitate timely processing of applications for development permits and resolve overlapping or conflicting permit requirements; and

         (C)  Communicate the potential [short] short- and long-term impacts of proposed significant coastal developments early in [their life cycle] the development stage and in terms understandable to the public to facilitate public participation in the planning and review process.

     (8)  Public participation;

         (A)  Promote public involvement in coastal zone management processes;

         (B)  Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with coastal issues, developments, and government activities; and

         (C)  Organize workshops, policy dialogues, and site-specific mediations to respond to coastal issues and conflicts.

     (9)  Beach protection;

         (A)  Locate new structures inland from the shoreline setback to conserve open space, minimize interference with natural shoreline processes, minimize negative impacts to coastal environments, and minimize loss of improvements due to coastal hazards including erosion;

         (B)  Prohibit construction of private erosion-protection structures seaward of the shoreline, except when they [result]:

(i) Result in improved public access, safety, aesthetic, environmental, and engineering solutions to coastal hazards including erosion at the sites;

(ii) Enhance beach conservation or restoration; and [do]

(iii) Do not significantly interfere with existing recreational and waterline activities[; and];

and

         (C)  Minimize the construction of public [erosion-protection] coastal hazard-protection structures seaward of the shoreline[.], except when they result in improved public access, safety, aesthetic, environmental, and engineering solutions to coastal hazards, or when they enhance beach conservation or restoration.

    (10)  Marine resources;

         (A)  Ensure that the use and development of marine and coastal resources are ecologically and environmentally sound and economically beneficial;

         (B)  Coordinate the management of marine and coastal resources and activities to improve effectiveness and efficiency;

         (C)  Assert and articulate the interests of the State as a partner with federal agencies in the sound management of ocean resources within the United States exclusive economic zone;

         (D)  Promote research, study, and understanding of ocean processes, marine life, and other ocean resources [in order] to acquire and inventory information necessary to understand how ocean development activities relate to and impact upon ocean and coastal resources; and

         (E)  Encourage research and development of new, innovative technologies for exploring, using, or protecting marine and coastal resources."

     3.  By amending the definitions of "department," "development," "special management area emergency permit," "special management area minor permit," "special management area use permit," and "structure" in section 205A-22 to read:

     ""Department" means the planning department in the counties of Kauai, Maui, and Hawaii, and the department of [land utilization] planning and permitting in the city and county of Honolulu, or other appropriate agency as designated by the county councils.

     "Development" means any of the uses, activities, or operations on land or in or under water within a special management area that are included below:

     (1)  Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; 

     (2)  Grading, removing, dredging, mining, or extraction of any materials;

     (3)  Change in the density or intensity of use of land, including [but not limited to] the division or subdivision of land;

     (4)  Change in the intensity of use of water, ecology related thereto, or of access thereto; and

     (5)  Construction, reconstruction, demolition, or alteration of the size, shape, footprint, or area of any structure.

     "Development" does not include the following:

     (1)  Construction of a single-family residence that is not part of a larger development;

     (2)  Repair or maintenance of roads and highways within existing rights-of-way;

     (3)  Routine maintenance dredging of existing streams, channels, and drainage ways;

     (4)  Repair and maintenance of underground utility lines, including [but not limited to] water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations;

     (5)  Zoning variances, except for height, density, parking, and shoreline setback;

     (6)  Repair, maintenance, or interior alterations to existing structures including hardened shorelines;

     (7)  Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers;

     (8)  Use of any land for the purpose of cultivating, planting, growing, and harvesting plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes;

     (9)  Transfer of title to land;

    (10)  Creation or termination of easements, covenants, or other rights in structures or land;

    (11)  Subdivision of land into lots greater than twenty acres in size;

    (12)  Subdivision of a parcel of land into four or fewer parcels when no associated construction activities are proposed; provided that any land which is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels;

    (13)  Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors;

    (14)  Structural and nonstructural improvements to existing single-family residences, where otherwise permissible;

    (15)  Nonstructural improvements to existing commercial structures; and

    (16)  Construction, installation, maintenance, repair, and replacement of civil defense warning or signal devices and sirens;

provided that whenever the authority finds that any excluded use, activity, or operation may have a cumulative impact, or a significant environmental or ecological effect on a special management area, that use, activity, or operation shall be defined as "development" for the purpose of this part.

     "Special management area emergency permit" means an action by the authority authorizing development in cases of emergency requiring immediate action to prevent substantial physical harm to persons or property or to allow the reconstruction of structures damaged by natural hazards to their original form; provided that such structures were previously found to be legal and in compliance with requirements of the [Federal] National Flood Insurance Program.

     "Special management area minor permit" means an action by the authority authorizing development the valuation of which is not in excess of [$125,000] $250,000 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects.

     "Special management area use permit" means an action by the authority authorizing development the valuation of which exceeds [$125,000] $250,000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects.

     "Structure" includes [but is not limited to] any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, [and] electrical power transmission and distribution line[.], wall, revetment, and groin."

     4.  By amending section 205A-26 to read:

     "§205A-26  Special management area guidelines.  In implementing this part, the authority shall adopt the following guidelines for the review of developments proposed in the special management area:

     (1)  All development in the special management area shall be subject to reasonable terms and conditions relative to the objectives, policies, and guidelines of this chapter set by the authority [in order] to ensure:

         (A)  Adequate public access, by dedication or other means, to and along the publicly owned or used beaches, recreation areas, and natural reserves is provided to the extent consistent with sound conservation principles;

         (B)  Adequate and properly located public recreation areas and wildlife preserves are reserved;

         (C)  Provisions are made for solid and liquid waste treatment, [disposition,] disposal, and management which will minimize adverse effects upon special management area resources; and

         (D)  Alterations to existing land forms and vegetation, except crops, and construction of structures shall cause minimum adverse effect to water resources and scenic and recreational amenities and minimum danger of floods, wind damage, wave damage, storm surge, landslides, erosion, sea-level rise, siltation, or failure in the event of earthquake[.];

     (2)  No development shall be approved unless the authority has first found:

         (A)  That the development will not have any [substantial] significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests.  Such adverse effects shall include[, but not be limited to ,] the potential cumulative impact of individual developments, each one of which taken in itself might not have a [substantial] significant adverse effect, and the elimination of planning options;

         (B)  That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; [and]

         (C)  That the development is consistent with the county general plan and zoning.  Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required[.];

(D) That the development has been adequately planned to minimize the risk from coastal hazards such as tsunami, hurricanes, wind, waves, flooding, erosion, sea-level rise, subsidence, and point and nonpoint source pollution; and

(E) That the development does not impede reasonable and adequate public access to or along the shoreline or beach area;

and

     (3)  The authority shall seek to minimize, where reasonable:

         (A)  Dredging, filling, or otherwise altering any bay, estuary, salt marsh, river mouth, slough, or lagoon;

         (B)  Any development which would directly reduce the size of any beach or other area usable for public recreation;

         (C)  Any development which would reduce or impose restrictions upon public access to tidal and submerged lands, beaches, portions of rivers and streams within the special management areas, and the mean high tide line where there is no beach;

         (D)  Any development which would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast; and

         (E)  Any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential or existing agricultural uses of land."

     5.  By adding two new definitions to section 205A-41 to be appropriately inserted and to read:

     ""Authority" means the county planning commission, except in counties where the county planning commission is advisory only, in which case "authority" means the county council or such body as the council may by ordinance designate.

"Department" means the planning departments of the counties of Kauai, Maui, and Hawaii, and the department of planning and permitting of the city and county of Honolulu, as appropriate."

     6.  By amending section 205A-43 to read:

     "§205A-43  Establishment of shoreline setbacks and duties and powers of the department.  (a)  Setbacks along shorelines are established of not less than twenty feet and not more than forty feet inland from the shoreline.  The department shall adopt rules pursuant to chapter 91, prescribing procedures for determining the shoreline setback line, and shall enforce the shoreline setbacks and rules pertaining thereto.

     (b)  The powers and duties of the department shall include[, but not be limited to:

(1) The department shall adopt rules under chapter 91 prescribing procedures for determining the shoreline setback line; and

(2) The department shall review] reviewing the plans of all applicants who propose any structure, activity, or facility that would be prohibited without a variance pursuant to this part.  The department may require that the plans be supplemented by accurately mapped data and photographs showing natural conditions and topography relating to all existing and proposed structures and activities.

(c)  The shoreline setback established in this section shall not apply to:

(1) Any structure that abuts the shoreline within the Waikiki Special District as defined in the Land Use Ordinance, Chapter 21, Revised Ordinances of Honolulu, as of the effective date of this Act; or

(2) Properties that abut beaches that are subject to the Waikiki Beach Reclamation Agreement dated October 19, 1928, between the Territory of Hawaii and beachfront property owners in Waikiki, as amended. "

     7.  By amending subsection (a) of section 205A-43.5 to read:

     "(a)  Prior to action on a variance application, the authority shall hold a public hearing under chapter 91.  By adoption of rules under chapter 91, the authority may delegate responsibility to the department.  Public and private notice, including reasonable notice to abutting property owners and persons who have requested this notice, shall be provided, but a public hearing may be waived prior to action on a variance application for:

     (1)  Stabilization of shoreline erosion by the moving of sand entirely on public lands;

    [(2) Protection of a legal structure costing more than $20,000; provided the structure is at risk of immediate damage from shoreline erosion;

(3) Other structures or activities; provided that no person or agency has requested a public hearing within twenty-five calendar days after public notice of the application; or

(4)] (2) Temporary emergency protection of a legal structure or improvement costing more than $50,000; provided that the structure or improvement is at risk of immediate damage from shoreline erosion or other coastal hazard; or

    [(4)] (3)  Maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or watersports recreational facilities, which result in little or no interference with natural shoreline processes."

     8.  By amending section 205A-45 to read:

     "§205A-45  Shoreline setback lines established by county.  (a)  The [several] counties through rules adopted pursuant to chapter 91 or ordinance may require that shoreline setback lines be established at distances greater than established in this part.

     (b)  The [several] counties through rules adopted pursuant to chapter 91 or ordinance may expand the shoreline area to include the area between mean sea level and the shoreline.

(c)  The counties, through rules adopted under chapter 91 or ordinance, or under existing authority, shall:

(1) Use the shoreline setback as a tool to minimize the damage from coastal hazards, including tsunami, hurricanes, wind, waves, flooding, erosion, sea-level rise, subsidence, and point and nonpoint source pollution.  Measures such as early planning, variances for innovative design, and minimum buildable areas shall be considered; and

(2) Ensure that:

(A) Any parcels created after the subdivision of an original parcel are sufficiently large to mitigate environmental damage and hazard exposure; and

(B) Public safety, public access, and public shoreline areas are protected.

(d)  Any shoreline setback adopted by a county pursuant to this section shall not apply to:

(1) Any structure that abuts the shoreline within the Waikiki Special District as defined in the Land Use Ordinance, Chapter 21, Revised Ordinances of Honolulu, as of the effective date of this Act; or

(2) Properties that abut beaches that are subject to the Waikiki Beach Reclamation Agreement dated October 19, 1928, between the Territory of Hawaii and beachfront property owners in Waikiki, as amended."

     9.  By amending subsection (a) of section 205A-46 to read:

     "(a)  A variance may be granted for a structure or activity otherwise prohibited in this part if the authority finds in writing, based on the record presented, that the proposed structure or activity is necessary for or ancillary to:

     (1)  Cultivation of crops;

     (2)  Aquaculture;

     (3)  Landscaping; provided that the authority finds that the proposed structure or activity will not adversely affect beach processes or adequate public access and will not artificially fix the shoreline;

     (4)  Drainage;

     (5)  Boating, maritime, or watersports recreational facilities;

     (6)  Facilities or improvements by public agencies or public utilities regulated under chapter 269;

     (7)  Private facilities or improvements that are clearly in the public interest;

     (8)  Private facilities or improvements which will neither adversely affect beach processes nor artificially fix the shoreline; provided that the authority also finds that hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline area;

     (9)  Private facilities or improvements that may [artificially fix] harden the shoreline; provided that the authority [also finds]:

(A) Finds that shoreline erosion is likely to cause significant hardship to the applicant if the facilities or improvements are not allowed within the shoreline area[, and the authority imposes];

(B) Considers whether the activity will alter beach-quality sediment availability;

(C) Finds that the facilities or improvements do not limit or severely reduce adequate public access or public shoreline use; and

(D) Imposes conditions to prohibit any structure seaward of the existing shoreline unless it is clearly in the public interest; [or]

(10) Private facilities or improvements that are mauka or landward of an existing hardened shoreline; or

  [(10)](11)  Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline[;] within the same littoral system; provided that the authority also finds that moving of sand [will not adversely affect beach processes,] will not diminish the size of a public beach, and will be necessary to stabilize an eroding shoreline[.] or for stream mouth maintenance."

     10.  By amending subsection (c) of section 205A-71 to read:

     "(c)  The authority shall adopt rules under chapter 91 setting forth procedures for implementing this section.

As used in this section, "authority" means the county planning commission, except in counties where the county planning commission is advisory only, in which case "authority" means the county council or such body as the council may by ordinance designate."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on January 1, 2046.