Bill Text: HI SB501 | 2016 | Regular Session | Amended

Hawaii Senate Bill 501 (Prior Session Legislation)

Bill Title: Coastal Zone Management; Sea Level Rise Impacts; Shoreline Setbacks

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2016-01-22 - Re-Referred to WLA/PSM, JDL/WAM. [SB501 Detail]

Download: Hawaii-2016-SB501-Amended.html

THE SENATE	S.B. NO.	501
TWENTY-EIGHTH LEGISLATURE, 2015		S.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. The legislature finds that currently shoreline erosion rate data is available to the counties of Oahu, Maui, and Kauai but is not available in the county of Hawaii.

The purpose of this Act is to:

(1) Amend the coastal zone management program's objectives and policies;

(2) Amend the special management area law by, among other things, requiring that any future development on a subdivided lot take into account the long-term impact of sea level rise and prohibiting the approval of development unless adequate mitigation is required in areas subject to coastal hazards; and

(3) By January 1, 2018, require counties with available and reviewed shoreline erosion rate data to establish shoreline setbacks using a method prescribed by the department of land and natural resources.

SECTION 2. 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" includes tsunamis, hurricanes, wind, storm waves, erosion, impacts related to sea level rise, 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 3. Section 205A-2, Hawaii Revised Statutes, is amended to read as follows:

"§205A-2 Coastal zone management program; objectives and policies. (a) The objectives and policies in this section shall apply to all parts of this chapter.

(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 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 planning for coastal 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.

(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 [~~replacement~~] restoration of coastal resources having significant recreational value including, but not limited to coral reefs, 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 [~~replacement~~] restoration 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

(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;

(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 coral reefs[,] and coastal dunes, 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,~~] planned, designed, and constructed to minimize exposure to coastal hazards and minimize adverse social, visual, and environmental impacts in the coastal zone management area; and

(C) Direct the location and expansion of coastal [~~dependent developments~~] development 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, subsidence, and point and nonpoint source pollution~~] coastal hazards;

(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 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

(9) Beach protection;

(A) Locate new structures inland from the shoreline [~~setback~~] area 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;

(D) Prohibit private property owners from creating a public nuisance by inducing or cultivating the private property owner's vegetation in a beach transit corridor; and

(E) Prohibit private property owners from creating a public nuisance by allowing the private property owner's unmaintained vegetation to interfere or encroach upon a beach transit corridor;

(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 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", "special management area minor permit", "special management area use 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 of any structure.

"Development" does not include the following:

(1) Construction or reconstruction of a single-family residence that is less than seven thousand five hundred square feet of floor area and 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) Final subdivision approval; provided that in counties that may automatically approve tentative subdivision applications as a ministerial act within a fixed time of the submission of a preliminary plat map, unless the director takes specific action, a special management area use permit if required, shall be processed concurrently with an application for tentative subdivision approval or after tentative subdivision approval and before final subdivision approval;

(12) Subdivision of land into lots greater than twenty acres in size;

(13) Subdivision of a parcel of land into four or fewer parcels when no associated construction activities are proposed; provided that any land that is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels; provided further that any future development on any of the resulting parcels would not be located in areas significantly affected by sea level rise over the typical lifespan of the structure or facility, or fifty years, whichever is later;

(14) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors;

(15) Structural and nonstructural improvements to existing single-family residences, where otherwise permissible;

(16) Nonstructural improvements to existing commercial structures; and

(17) Construction, installation, maintenance, repair, and replacement of emergency management 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~~] significant 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 legal and 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 $500,000 and which has no [~~substantial~~] significant adverse environmental or ecological effect, taking into account potential cumulative effects.

"Special management area use permit" means an action by the authority authorizing development the valuation of which exceeds $500,000 or which may have a [~~substantial~~] significant adverse environmental or ecological effect, taking into account potential cumulative effects.

"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 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, 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 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) Adequate mitigation, including adaptive or resilient design, is required of development located in areas subject to coastal hazards.

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

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

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. No later than January 1, 2018, in each county where shoreline erosion rate data is available and has been reviewed for use by the department, the shoreline setback line shall be established using a method to be prescribed by the department, including but not limited to at least fifty-year annual shoreline erosion rates and may be at least sixty 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-46, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) No variance shall be granted unless appropriate conditions are imposed:

(1) To maintain safe lateral access to and along the shoreline or adequately compensate for its loss;

(2) To minimize risk of adverse impacts on beach processes;

(3) To minimize risk of structures failing and becoming loose rocks or rubble on public property; [~~and~~]

(4) To minimize adverse impacts on public views to, from, and along the shoreline[.]; and

(5) To minimize adverse environmental or ecological impacts to coastal ecosystems and marine resources."

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

Report Title:

Coastal Zone Management; Sea Level Rise Impacts; Shoreline Setbacks

Description:

Amends the coastal zone management program's objectives and policies. Amends the special management area law by: removing demolition of a structure from the definition of "development"; requiring that any future development on a subdivided lot takes into account the long-term impact of sea level rise; amending the definitions of "special management area emergency permit", "special management area minor permit", and "special management area use permit"; and prohibiting the approval of development unless adequate mitigation is required in areas subject to coastal hazards. By January 1, 2018, requires counties with available and reviewed shoreline erosion rate data to establish shoreline setbacks using a method prescribed by DLNR, which may be at least sixty feet inland from the shoreline. (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.