Report Title:

Coastal Zone Management

 

Description:

Requires certain agencies to account for sea-level rise and minimize risk from coastal hazards such as erosion, storm inundation, hurricanes, and tsunamis. Also preserves public shoreline access and authorizes the counties to account for annual shoreline erosion rates. (HB570 HD1)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

570

TWENTY-FIFTH LEGISLATURE, 2009

H.D. 1

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. 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];

(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[.]; and

(3) Ensure that there is reasonable street parking near public access areas in the special management areas under chapter 205A."

SECTION 2. Section 205A-1, Hawaii Revised Statutes, is amended by amending the definition of "agency" 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;"

SECTION 3. Section 205A-2, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(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 but not limited to tsunami, [storm] hurricanes, wind, waves, [stream] flooding, erosion, sea-level rise, subsidence, and 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 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, and 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 in improved public access, safety, aesthetic, environmental, and engineering solutions to coastal hazards including erosion at the sites, enhance beach conservation, and do not significantly interfere with existing recreational and waterline activities; 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.

(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."

SECTION 4. Section 205A-22, Hawaii Revised Statutes, is amended by amending the definitions of "department", "development", "special management area emergency permit", and "structure" to read as follows:

""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;

(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.

"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."

SECTION 5. Section 205A-26, Hawaii Revised Statutes, is amended to read as follows:

"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, 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, and sea-level rise; 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."

SECTION 6. Section 205A-41, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""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."

SECTION 7. Section 205A-43, Hawaii Revised Statutes, is amended to read as follows:

"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."

SECTION 8. Section 205A-43.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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 inhabited dwelling or major infrastructure; provided the structure 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."

SECTION 9. Section 205A-45, Hawaii Revised Statutes, is amended to read as follows:

"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. The shoreline setback shall use a method including but not limited to the average annual shoreline erosion rate, where appropriate, in addition to the minimum distance established in section 205A-43.

(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 pursuant to 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 but not limited to tsunami, hurricanes, wind, waves, flooding, erosion, sea-level rise, subsidence, and 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 accommodate a shoreline setback based on average annual erosion rate or other means to mitigate environmental damage and hazard exposure; and

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

SECTION 10. Section 205A-46, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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) 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."

SECTION 11. Section 205A-71, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

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

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval.