Hawaii-2012-HB2779-Introduced

SECTION 1. The legislature finds that the land–sea interface is a complex social–ecological system characterized by natural ecological processes and human-induced changes. Holistic management of the shoreline is a critical element of an ecosystem-based approach to the land–sea interface in coastal zone management programs. Anthropogenic alteration of shoreline environments has resulted in significant loss of sandy beach ecosystems and eroded the resilience of these systems to disturbance. Cumulative impacts from human activities have made coastal ecosystems among the most transformed and degraded environments worldwide.

In Hawaii, beach loss on Maui has been estimated at nineteen per cent since the 1950s, with over eight kilometers of dry sand beach lost, and similar losses have been reported for Oahu. Much of the beach loss on Hawaiian shores is attributed to the construction of hard stabilization structures for erosion control, commonly referred to as "armoring." Pre-coastal zone management estimates for Hawaii from the early 1970s indicate that more than seven per cent of the total shoreline of the major islands was armored, with Oahu exhibiting 25.6 per cent of its shoreline being armored. Many pre-coastal zone management structures are unrecorded and non-conforming with existing law, and amnesty programs have been developed for some shorelines to bring existing structures into legal compliance. Current conservative estimates indicate that up to forty per cent of Oahu's shoreline is now armored.

The purpose of Act is to enhance the efficacy of coastal zone management programs in successfully managing shorelines under erosion risk and to maintain or enhance the resilience of coastal ecosystems and communities.

SECTION 2. Section 205A-26, Hawaii Revised Statutes, is amended to read as follows:

"§205A-26 Special management area guidelines. (a) 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 set by the authority in order to ensure:

(A) Adequate access, by dedication or other means, to 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.

(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 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[.]; and

(D) That the development will not interfere with the natural course of the beach, including further accretion or erosion in the case of development that includes the construction of any structure, retaining wall, or other object to prevent or mitigate coastal erosion of private property; 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 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.

(b) The authority shall identify, categorize, and prioritize zones within the special management area that may consist of specific habitats, ecosystems, or other resource types that are targeted for preservation or hazard mitigation. The guidelines for reviewing developments within special management areas adopted pursuant to subsection (a) shall include guidelines specific to the preservation of or mitigation of hazards to the habitat or resource within each specific zone.

(c) The authority shall presume that one foot of sea level rise will occur by 2050, and three feet of sea level rise will occur by 2100, and plan accordingly."

SECTION 3. Section 205A-27, Hawaii Revised Statutes, is amended to read as follows:

"§205A-27 Designation of special management area authority. The authority is designated the special management area authority and is authorized to carry out the objectives, policies, and procedures of this part[.]; provided that the authority may delegate special management area authority to any authority, as defined in section 205A‑22, as necessary."

SECTION 4. Section 205A-46, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) 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 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, including further accretion or erosion of a beach, nor artificially fix the shoreline; provided that the authority [~~also finds~~]:

(A) Finds that hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline area; and

(B) Determines that alternatives that would have less adverse impacts on the shoreline are not feasible;

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

(A) Finds that shoreline erosion is likely to cause hardship to the applicant if the facilities or improvements are not allowed within the shoreline area[~~, and the authority imposes conditions to prohibit any structure seaward of the existing shoreline unless it~~];

(B) Finds that alternatives that would have less adverse impacts on the shoreline, such as beach nourishment, are not feasible; and

(10) Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; 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.

(b) [~~Hardship shall be defined in rules adopted by the authority under chapter 91. Hardship~~] The authority shall adopt rules, pursuant to chapter 91, to establish a clear process and guidelines for determining the following:

(1) Specific types of facilities and improvements for which variances may be granted pursuant to this section and, if a variance is granted, specific guidelines for where in relation to the shoreline these facilities and improvements may be placed and under what conditions;

(2) How projects will be determined by the authority to benefit the public interest such that a variance may be granted for the project; and

(3) How hardship will be defined for purposes of granting a variance; provided that hardship shall not be determined as a result of county zoning changes, planned development permits, cluster permits, or subdivision approvals after June 16, 1989, or as a result of any other permit or approval listed in rules adopted by the authority.

The rules adopted pursuant to this subsection shall include definitions of terms used, any potential exclusions from the process established under the rules, and measures that will be taken by the authority to enforce the rules."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2012.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2779
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII