Shoreline; Definition; Certification; Coastal Zone Management
Clarifies the definition of "shoreline"; prohibits shoreline planting to establish the shoreline and for certification purposes; and authorizes the state land surveyor to rescind a shoreline certification based on a misrepresentation in the application. (SB1556 HD1)
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO coastal zone management.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Hawaii's land laws are unique in that they are based on ancient tradition, custom, practice, and usage. Throughout Hawaiian history, the ocean shoreline has provided venue for habitation, transportation, religious practice, cultural, and recreational focus. Until the Great Mahele of 1848 under King Kamehameha III, title to all lands subject to tenants rights, including coastal lands, were the sole property of Hawaiian alii. The Great Mahele (1848-1856) changed this by creating a western system of fee simple property ownership. For the first time it was possible for people, other than the alii, to own fee simple lands.
In In Re Application of Ashford, 50 Haw. 314 (1968) (Ashford), the Hawaii supreme court explained that the majority of titles were conveyed in the 1850s even though the government had no knowledge of tidal datums or benchmark elevations. Hence, there was no intention to use elevation in establishing coastal deed boundaries. In most cases, the government relied, instead, on the high water mark of the waves. In Ashford, the State of Hawaii successfully argued that traditional rights of public access existing under the monarch land tenure system, prior to the Great Mahele, extend to the present and include the right to traverse along the rocky shoreline to swim, fish, and seek other varieties of seafood. The Hawaii supreme court decision in Ashford that "the location of a boundary described as "ma ke kai" is along the upper reaches of the wash of the waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves" serves as the foundation of the present legal definition of Hawaii's shoreline and a long-standing public policy of extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible.
The definition of "shoreline" identifies the boundary for shoreline certifications. The primary purpose of shoreline certifications is to administer the shoreline setback law and other related laws. The shoreline setback is to provide a buffer zone that protects both beach resources and private landowners from the effects of shoreline instability and coastal hazards.
However, the legislature finds that the position of the shoreline in Hawaii is defined by multiple criteria, requiring interpretation and judgment. The state surveyor processes over two hundred shoreline certifications each year, resulting in five to six contested case hearings a year. The majority of the cases involve a dispute over the interpretation of the field evidence to locate the upper reaches of the wash of the waves. The manipulated planting of salt-tolerant plants can easily confuse the identification of a natural vegetated shoreline that in the past have evidenced the upper reaches of the wash of the waves. Vegetated berms, now widely planted on coastal properties, can lead to heavy abuses of the shoreline certification process. A typical beach is only one hundred feet wide; therefore, a manipulated, vegetated shoreline may represent a loss of ten to one hundred per cent of beach width for public use.
Further, the legislature finds that a debris line from a low or small surf season or high tide event can also be an inaccurate indicator of a shoreline for the purposes of a shoreline certification. Therefore, the definition of shoreline in this Act clarifies that the resultant debris line must be based on the uppermost reach of waves during the period of the year in which the highest wash of the waves occurs.
The purpose of this part is to clarify the definition of "shoreline" and to protect resources that rightfully belong within the public trust.
SECTION 2. Section 200-1, Hawaii Revised Statutes, is amended by amending the definition of "shoreline" to read as follows:
means the upper reaches of the wash of the waves, usually evidenced by the edge of vegetation growth or by the upper limit of debris left by the wash of the waves.] has the same meaning as defined in section 205A-1."
SECTION 3. Section 205A-1, Hawaii Revised Statutes, is amended by amending the definition of "shoreline" to read as follows:
""Shoreline" means the [
upper reaches] uppermost reach 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[ .], whichever is furthest mauka or inland; provided that the vegetation is not influenced or modified by human intervention."
SECTION 4. The legislature finds that to vegetate the shoreline by human intervention decreases the beach area accessible to the public and distorts the process to certify shorelines. The planting of naupaka and other salt tolerant plants or the installation of irrigation systems to induce vegetation growth are unacceptable attempts to influence the shoreline certification process. The purpose of this part is to prohibit the planting of vegetation to establish a shoreline and to prohibit the use of the planted vegetation line in the shoreline certification process.
SECTION 5. Chapter 205A, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§205A- Shoreline planting prohibited; certification. (a) The planting of vegetation or facilitating or inducing the growth of vegetation by human intervention to influence or modify the shoreline shall be prohibited.
(b) The vegetation growth prohibited in subsection (a) shall not be considered in determining the shoreline in the shoreline certification process."
SECTION 6. In Ashford, the Hawaii supreme court also acknowledged the importance of kamaaina witnesses in determining the location of "ma ke kai". Beach loss in Hawaii is an environmental tragedy that can result in significant adverse economic impact. Those individuals who administer shoreline certification and county setback ordinances form a thin layer of protection for landowners who frequently fight against what in fact is in their own best interest, and for the public who may not yet appreciate the tenuous standing of their favorite recreational and cultural resource. Any weakness or oversight in the certification or setback process can spell fast and irreversible catastrophe to our shoreline. Our shorelines are the common heritage for all generations to come. Therefore, it is the duty of all citizens in the State, whether landowner, registered surveyor, or government worker, to understand the importance of accurately identifying the shoreline.
Currently, the burden is on adjacent property owners and the public to search the periodic bulletin published by the office of environmental quality control for notices of applications for shoreline certification that may affect them. The legislature finds, however, that shoreline certifications are too important to place the burden on individual neighboring property owners and the general public. Rather, the burden should be on the applicant to inform the neighboring property owners, the general public, and the county of the filing of an application for shoreline certification.
The purpose of section 7 is to require applicants to mail copies of applications for shoreline certification, including proposed maps and photographs, to the county planning agency, the office of environmental quality control, and abutting property owners.
SECTION 7. Chapter 205A, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§205A- Shoreline certification; notice. An applicant for shoreline certification under this part shall provide a copy of the application for shoreline certification, including the proposed map and photographs, by certified mail to:
(1) All abutting shoreline property owners;
(2) The office of environmental quality control for publication in its periodic bulletin; and
(3) The county planning agency.
The notification may be made to the respective homeowners' board or association of the affected condominium property regime or cooperative housing corporation in lieu of individual owners. The applicant shall further provide to the chairperson of the board of land and natural resources a certificate of service with respect to the property owners and the county planning agency who have been served."
SECTION 8. The legislature finds that the state surveyor must be given the authority to rescind a shoreline certification where there is substantial misrepresentation of material fact. Further, to assist the surveyor or any other person surveying the shoreline for certification purposes, in accurately certifying the shoreline, notice of the date, time, and place of the site inspection should be made public so that the surveyor can benefit from persons with knowledge of and experience with the uppermost reaches of the wash of the waves in the vicinity of the shoreline to be certified. Accordingly, the purpose of section 9 is to:
(1) Authorize the state land surveyor to rescind a shoreline certification where there is a substantial misrepresentation of material fact in the original application; and
(2) Require the chairperson of the board of land and natural resources to cause public notice of the date, time, and place when any person will be on site to locate the shoreline as part of the shoreline certification process.
SECTION 9. Section 205A-42, Hawaii Revised Statutes, is amended to read as follows:
"§205A-42 Determination of the shoreline. (a) The board of land and natural resources shall adopt rules pursuant to chapter 91 prescribing procedures for determining a shoreline and appeals of shoreline determinations that are consistent with subsection (b); provided that no determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by artificial structures that have been approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure.
(b) The chairperson of the board of land and natural resources shall cause a public notice to be published in the periodic bulletin published by the office of environmental quality control. All comments to the application for shoreline certification shall be submitted in writing to the state land surveyor no later than fifteen calendar days from the date of the public notice of the application. Notice of application for certification shall be identified by tax map key number, and where applicable, street address and nearest town.
(c) The state land surveyor may review any shoreline certification during its twelve-month validity period and rescind the certification if there is a misrepresentation of material fact in the original application, whether intentional or unintentional."
SECTION 10. Section 205A-49, Hawaii Revised Statutes, is amended to read as follows:
"§205A-49 Adoption of rules. Each agency charged with carrying out this part shall adopt rules necessary to implement or comply with this part [
by July 1, 1990]. All rules shall be adopted under chapter 91."
SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 13. This Act shall take effect upon its approval.