Report Title:

Coastal Zone Management

 

Description:

Amend chapter 205A, Hawaii Revised Statutes, to improve coastal zone management by (1) clarifying "development" and "not development" in the special management area (SMA); (2) improving the SMA permit system; and (3) considering shoreline erosion rates for the shoreline setback to reduce the threat from coastal hazards.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1049

TWENTY-FIFTH LEGISLATURE, 2009

 

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 205A-1, Hawaii Revised Statutes, is amended to read as follows:

     "§205A-1  Definitions.  As used in this chapter, unless the context otherwise requires:

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

     "Artificial light" or "artificial lighting" means the light emanating from any fixed human-made device.

     "Coastal hazards" include tsunami, hurricane, wind, storm wave, sea level rise, flood, erosion, volcanic activity, earthquake, landslide, subsidence, and point and nonpoint source pollution.

     "Coastal zone management area" means all lands of the State and the area extending seaward from the shoreline to the limit of the State's police power and management authority, including the United States territorial sea[;].

     "Coastal zone management program" means the comprehensive statement in words, maps, or other permanent media of communication, prepared, approved for submission, and amended by the State and approved by the United States government pursuant to Public Law No. 92-583, as amended, and the federal regulations adopted pursuant thereto, which describes objectives, policies, laws, standards, and procedures to guide and regulate public and private uses in the coastal zone management area, provided however the "coastal zone management program" is consistent with the intent, purpose, and provisions of this chapter[;].

     "Directly illuminate" means to illuminate through the use of a glowing element, lamp, globe, or reflector of an artificial light source.

     "Land" means the earth, water, and air above, below, or on the surface[;].

     "Lead agency" means the office of planning[;].

     "Ocean waters" means all waters seaward of the shoreline within the jurisdiction of the State.

     "Person" means an individual, corporation, or partnership, and an organization or association, whether or not incorporated[;].

     "Public advisory body" means the advisory body established in section 205A-3.5[;].

     "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."

     SECTION 2.  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 reefs, from disruption and minimize adverse 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] threat to life and property from [tsunami, storm waves, stream flooding, erosion, subsidence, and pollution.] coastal hazards.

     (7)  Managing development;

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

     (8)  Public participation;

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

     (9)  Beach protection;

         (A)  Protect beaches for public use and recreation.

    (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 by:

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

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

(iii)  Providing and managing adequate public access, consistent with conservation of natural resources, to and along 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

         (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 reefs, of significant biological or economic importance;

         (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.

     (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, and permit coastal dependent development outside of presently designated areas when:

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

             (ii)  Adverse environmental effects are minimized; and

            (iii)  The development is important to the State's economy.

     (6)  Coastal hazards;

         (A)  Develop and communicate adequate information about [storm wave, tsunami, flood, erosion, subsidence, and point and nonpoint source pollution] coastal hazards;

         (B)  Control development in areas subject to [storm wave, tsunami, flood, erosion, hurricane, wind, subsidence, and point and nonpoint source pollution] the threat of coastal 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 and long-term impacts of proposed significant coastal developments early in their life cycle 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, and minimize loss of improvements due to erosion;

         (B)  Prohibit construction of private erosion-protection structures seaward of the shoreline, except when they result in improved aesthetic and engineering solutions to erosion at the sites and do not interfere with existing recreational and waterline activities; and

         (C)  Minimize the construction of public erosion-protection structures seaward of the shoreline.

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

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

     "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 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] except 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] coastal hazards to their original form; provided that such structures were previously found to be 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 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative [effects.] impact.

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

     SECTION 4.  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 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, storm surge, landslides, erosion, siltation, or failure in the event of earthquake.] coastal hazards; and

         (E)  Commencement and completion of development within specified periods of time.

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

         (A)  That the development will not have any substantial 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 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 other 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.

     (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 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 5.  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, and shall enforce the shoreline setbacks and rules pertaining thereto.], unless the shoreline setback line is established based on average annual shoreline erosion or accretion rates.

     (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 shall enforce the shoreline setbacks and rules pertaining thereto; and

     (2)  The department shall review 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 6.  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 that 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."

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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By Request