SB1310

SECTION 1. The legislature finds that many beachfront homeowners in Hawaii have resorted to building seawalls, groins, revetments, sandbag walls (known locally as "burritos") or other shoreline hardening structures to stave off the local sea level rise, strong wave action, and coastal flooding along the coast. However, these structures accelerate coastal erosion in the areas they are meant to protect and further cause increased erosion in adjacent areas of the beach that do not have similar structures.

The legislature further finds that some of these shoreline hardening structures are built without permission, while others are built with emergency permits from the department of land and natural resources. Although these emergency permits are typically limited to three years, they are often granted endless extensions and the temporarily permitted structures generally are not removed after the expiration of the permit. What was originally intended to be a stopgap measure to help beachfront homeowners has instead become permanent permission to keep the shoreline hardening structures in place.

The legislature recognizes that the State has a "no tolerance" policy for new shoreline armoring. Although property owners can still apply to build a seawall, the process is long and onerous, including a formal environmental review, public hearings, and approval from the department of land and natural resources. Alternatively, an emergency permit is comparatively simple as there is not even a formal application required. Due to the informal nature of the process, many property owners and contractors do not take the permit requirement seriously, nor do they understand the harm that these structures are doing to accelerate erosion. As the owner of a company that installs these unauthorized structures stated, "We still have plenty of beaches on this island that if you just let [a few beaches] go, it's not going to affect anyone. We still have plenty of places to go to the beach."

Accordingly, the purpose of this Act is to protect Hawaii's beaches from accelerated erosion resulting from shoreline hardening structures by:

(1) Requiring that an emergency permit for the construction, maintenance, or improvement of shoreline hardening structures be valid for up to three years and may not be renewed or extended;

(2) Establishing penalties for persons who build, improve, or maintain a shoreline hardening structure without a valid permit; and

(3) Requiring the division of conservation and resources enforcement of the department of land and natural resources to administer and enforce this Act.

SECTION 2. Section 183C-7, Hawaii Revised Statutes, is amended to read as follows:

"§183C-7 Penalty for violation. (a) The department shall prescribe administrative procedures as it deems necessary for the enforcement of this chapter and any zoning rule adopted in accordance therewith. These rules may be enforced by court order at the suit of the department or of the owner or owners of real estate directly affected by the rules. The provisions of section 607-25 shall apply to this chapter.

(b) Any person violating this chapter or any rule adopted in accordance with this chapter shall be fined not more than $15,000 per violation in addition to administrative costs, costs associated with land or habitat restoration, and damages to public land or natural resources, or any combination thereof. After written or verbal notification from the department, wilful violation of this chapter or any rule adopted in accordance with this chapter may incur an additional fine of up to $15,000 per day per violation for each day in which the violation persists. The board may set, charge, and collect the fine based on the value of the natural resource that is damaged, the market value of the natural resource damaged, and any other factor it deems appropriate, such as the loss of the natural resource to its natural habitat and environment and the cost of restoration or replacement. The remedies provided for in this subsection are cumulative and in addition to any other remedies allowed by law.

(c) No person, including a property owner, contractor, or laborer shall build, construct, erect, make, manufacture, assemble, or maintain any shoreline hardening structure without a valid permit issued pursuant to section 205A-30 for such work. Any person who violates this subsection and shall be subject to a fine of no less than $1,000 but no more than $25,000 per violation. Each day that the unpermitted work continues or the unpermitted shoreline hardening structure remains in place shall constitute a separate violation. In addition to these fines, the department may impose additional amounts, which may include administrative costs, costs associated with land or habitat restoration, damages to public land or natural resources, or any combination thereof. As used in this subsection:

"Laborer" means any person who performs work and labors on the shoreline hardening structure, whether the person receives wages or payment of any kind.

"Shoreline hardening structure" means any structure or project intended to stabilize sediment and prevent erosion or provide flood protection, including seawalls, groins, jetties, revetements, sandbags, and sand burritos.

[~~(c)~~] (d) This section shall not be construed to prohibit any person from exercising native Hawaiian gathering rights or traditional cultural practices as authorized by law or as permitted by the department pursuant to article XII, section 7, of the Hawaii constitution."

SECTION 3. Section 205A-30, Hawaii Revised Statutes, is amended to read as follows:

"§205A-30 Emergency and minor permits. (a) Each county authority shall provide specific procedures consistent with this part for the issuance of special management area emergency permits or special management area minor permits, pursuant to the procedural requirements within this part, and judicial review from the grant and denial thereof. The lead agency shall file notice of special management area minor permits in the next available issue of the periodic bulletin of the office of environmental quality control.

(b) If any applicant files for an emergency permit in any county for the purpose of constructing, maintaining, or improving a shoreline hardening structure, such permit shall:

(1) Be valid for up to three years from the date of issuance by the county authority; and

(2) Not be extended or renewed beyond the original three-year term.

(c) For purposes of this section, "shoreline hardening structure" means any structure or project intended to stabilize sediment and prevent erosion or provide flood protection, including seawalls, groins, jetties, revetements, sandbags and sand burritos of any size."

SECTION 4. Section 607-25, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) As used in this section, "development" does not include:

(1) The transfer of title, easements, covenants, or other rights in structures or land;

(2) The repair and maintenance of existing structures[;], unless the existing structures were constructed without a permit when a permit was required or when a previously issued permit has lapsed, expired, or terminated;

(3) The placement of a portable structure costing less than $500; or

(4) The construction of a structure which only required a building permit and for which a building permit could be granted without any discretionary agency permit or approval."

SECTION 5. The department of land and natural resources shall adopt rules, pursuant to Chapter 91, Hawaii Revised Statutes, necessary for the enforcement of this Act. The division of conservation and resources enforcement within the department of land and natural resources shall be responsible for the administration and enforcement of the provisions of this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1310
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII