Sea Level Rise Report Spawns Many Bills, But Legislators Let Nearly All of Them Die

posted in: June 2018 | 0

The state Legislature tried to make great strides to address the flooding projections in the Sea Level Rise Vulnerability and Adaptation Report (SLR report) issued just before the session began, but wound up taking a baby step.

Armed with the sobering details in that report — 6,500 structures will be chronically flooded, 28 miles of coastline will become impassible, 20,000 residents will be displaced with a 3.2 meter rise in sea level — several legislators introduced more than a dozen measures to force both the public and private sectors to take action.

House Bill 2106, introduced by Rep. Chris Lee, was perhaps the only SLR-related bill to make it to the governor’s desk. It directs the Environmental Council to adopt rules requiring all environmental assessments and impact statements prepared pursuant to the state’s environmental review law to consider sea level rise, using the best science available.

More than a dozen other SLR-related measures died, as did a handful of bills that attempted to reduce the state’s greenhouse gas emissions.

Report Recommendations: Senate Bill 3068, introduced by Sen Kalani English, basically directed state and county agencies to do everything recommended in the SLR report, a tall order for even the most flush. To start, every state agency and every county would have had to review their policies, processes, and rules to assess whether they supported “the smart redevelopment of urban areas as part of sea level rise adaptation planning.” The first review would have had to be done by July 1, 2019.

The counties also would have been required to do about a dozen more tasks, including assessing market conditions of urban regions, identifying priority redevelopment areas, and updating plans for capital improvements to reflect rising sea levels.

The state Office of Planning (OP) was tasked with integrating the SLR report’s recommendations into state planning, maintaining an inventory of lands suitable for development outside of sea level rise exposure areas, establishing a committee to assess risks in urban areas vulnerable to sea level rise effects, and develop a “willing seller” program to identify property owners who are willing to sell or relocate to safer areas.

Also, by the 2021 legislative session, the OP was expected to have developed a financing strategy to address the costs of sea level rise adaptation.

The bill assigned additional duties specifically to the Office of Environmental Quality Control, the Board of Land and Natural Resources, the Office of Hawaiian Affairs, the Department of Health, and the state Climate Change Mitigation and Adaptation Commission.

Some of those agencies stated in testimony that they supported the intent of the bill, but worried about the costs and resources required, as well as the bill’s attempt to make law out of what was meant to be merely a guidance document.

“[I]t is currently premature to require state and county agencies to use data and integrate recommendations from the SLR Report in their planning and inventory of lands, as the SLR Report explicitly states that it is only useful as a ‘screening-level resource’ and should not be used for ‘legal purposes,’” OP director Leo Asuncion wrote, adding that his agency alone would need $2.35 million in additional funding to hire the consultants needed to carry out the tasks outlined in the bill.

Josh Stanbro, executive director of the City and County of Honolulu’s new Office of Climate Change and Sustainability, also worried about paying for all the work prescribed by the bill. “[W]e are concerned that this bill mandates city actions and reporting without funding to carry them out. These are not one-time costs, but reflect an ongoing commitment,” he wrote, before asking that permanent funding be included in the bill “to assist the city and other counties in this work.”

Land Board chair and Department of Land and Natural Resources (DLNR) director Suzanne Case recommended that more time be given to agencies to digest the SLR report recommendations and to return to the Legislature the next session with their own recommendations.

In the meantime, Case pointed out that the Climate Commission planned to set an aggressive agenda over the next several months to meet carbon emissions reduction and sea level rise adaptation goals.

“The department envisions forming a Sea Level Rise working group that will work with state and county agencies, the business community, and the public on efforts that must be undertaken to improve our resiliency in the face of sea level rise. We will surely be developing a legislative package for next year’s session,” she wrote.

The departments of Transportation and Health echoed points raised by Case, Asuncion, and Stanbro.

“The department currently does not have the staff and expertise to conduct a sea level rise mitigation review of hazardous material and waste storage facilities, underground storage tanks and on-site sewage disposal systems or wastewater treatment facilities. Therefore, the department recommends studies such as these should be in collaboration and concert with the Hawai’i Climate Change Mitigation and Adaptation Commission as part of a more comprehensive examination of sea level rise impact,” the DOH wrote.

The bill made it through crossover, but eventually died in the House.

Shoreline Encroachments: HB 2653 was the DLNR’s latest attempt to get the Legislature to give it some leeway in setting rent for shoreline encroachment easements by legally built structures that now sit on public land due to erosion and/or SLR. Under current law, the department must charge fair market value for the easements. In past years, the DLNR sought to be able to charge less than fair market rent for perpetual, non-exclusive easements for shoreline encroachments. Many people, including some legislators, thought this would encourage inappropriate shoreline development and the proposals repeatedly failed.

This year, however, the bill was amended to encourage retreat from the shoreline. Under House draft 1, the Land Board would be allowed to charge less than fair-market rent for easements with terms, including extensions, of up to 35 years.

“The limited term duration of the easement provides the board with greater oversight and the flexibility to implement future policies in regards to shoreline protection structures. Additionally, it provides the Legislature with time to evaluate and enact laws to address the impacts of sea level rise. The state can better focus its limited resources on working to find a solution to sea level rise rather than in conflict with private landowners,” wrote Land Board chair Case in her testimony strongly supporting the bill.

The bill made it to crossover, but died in the Senate. The Senate version, SB3093, never got a committee hearing. (For more background on this issue, see “Land Board to Legislature: Please, Consider Shoreline Easement Bills,” from our February 2018 issue, available at environment-hawaii.org.)

Real Estate: Perhaps people wouldn’t build so close to the shore, or buy a house in an eroding or low-lying coastal area if they knew of the potentially disastrous problems that lay ahead. Senate Bill 694 tried to mitigate that. It would have required people buying or receiving real estate to execute a statement acknowledging that they have reviewed the appropriate hazard exposure map from the SLR report and that they accepted the risks of acquiring property that is vulnerable to climate-related exposure. That bill faced opposition by the Hawai`i Association of Realtors (HAR) and sank after its first and only hearing. A similar measure, SB 2442, never even made it that far.

HAR disputed that the measure was needed, since its members already require something similar in the case of oceanfront properties. In testimony, it asked for a delay in the effective date so its members could update their standard forms, should the Legislature pass the bill.

SB 3068, which also failed (see above), included a section that would have required sellers to disclose whether their residential real properties were located within a sea level rise exposure area identified in SLR report maps.

(For background on this, see,“Bill Would Ensure Land Purchasers Know Of Sea Level Rise Threat,” from our March 2018 issue.)

Hazard Mitigation: SB2334, introduced by several legislators led by Sen. Laura Thielen, was also a sweeping bill that would have required action from a variety of agencies, but was much more manageable than SB 3068. The final version (Senate Draft 2) called for the state and counties to incorporate “evaluations, predictions, and recommendations (including those in the SLR report) pertaining to climate change hazards and mitigation into their respective multi-hazard mitigation plans.”

This bill made it to conference committee, but didn’t make it out.

Vern Miyagi, the then-administrator for the Hawai`i Emergency Management Agency, testified that the actions called for in the bill were already underway for the state’s update of its Hazard Mitigation Plan. “The [SLR report] will be a major consideration in the state hazard mitigation plan update which is due in October of 2018,” he wrote.

Miscellaneous: Some bills would have placed restrictions on leasing or development. Under HB2380, for example, before leasing lands at state boating facilities, the Land Board would have to find that 1) a prospective lessee had considered SLR risks and 2) that the effect of SLR on the proposed lease area would be minimal during the lease term. However, the Legislature could exempt the board from having to make those findings, if the board proved extraordinary circumstances necessitated it.

HB2469 would have prohibited a county or state agency from approving a permit to construct or operate a new grid-connected electrical generation facility in excess of five megawatts or storage facility in excess of 50 megawatt hours if located in a sea level rise exposure area.

SB2969 would have required county authorities to consider sea level rise when reviewing and approving all developments.

Beach Preservation: HB2468 would have created a special fund under the DLNR to acquire lands for beach preservation with prior legislative authorization, and a working group within the Climate Commission to determine appropriate funding mechanisms and established a three-year North Shore Oahu pilot program to explore managed retreat options. The bill never made it to the Senate.

Climate Refugees: A handful of resolutions — House Resolution 202, House Concurrent Resolution 232, Senate Concurrent Resolution 120, and Senate Resolution 77 — called for changes to U.S. immigration laws to allow migrants displaced from their homes by climate change to be granted refugee status. All failed.

—Teresa Dawson

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