The owners of five beachfront lots in scenic Ha`ena, Kaua`i, have had it easy for too long at the expense of the public and the environment, and it’s time government agencies ordered the removal of the 400-foot-long emergency sandbag revetment installed nearly 20 years ago to protect their properties. That’s according to longtime area residents Caren Diamond and Chipper Wichman, who wrote the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands on April 12, asking the state agency to take action.
In November 1996, high surf ate up to the very edges of homes on two of the lots, pulling large palm trees and chunks of lawn onto the beach and creating a 25-foot tall cliff. The following month, Kaua`i County and the DLNR issued emergency permits to allow the building of a temporary revetment.
“It was never intended to be a structure that would be kept in place for nearly two decades yet it remains in place today and is compromising the integrity of the dune, the near-shore marine environment and the county’s nearly adjacent beach park. … In short, this has become a serious environmental problem — a problem that should have been rectified many years ago,” Diamond and Wichman wrote.
In their letter, they include photos of the revetment blocking lateral public access and of sandbag pieces littering the beach, something they claim has occurred regularly over the past several years.
“While removing the revetment could have long-term stability consequences for the existing homes, all of the current owners bought this property knowing that shoreline erosion at this location was a major issue and that the temporary revetment would have to be removed and that the permanent hardening of the shoreline would not be allowed as it is in conflict with the shoreline management policy of both the state of Hawai`i and the County of Kaua`i,” they wrote.
Last year, the landowners proposed that the revetment be allowed to stay permanently, but so far, no permits to achieve that have been applied for, let alone granted. With the Kaua`i Planning Department’s denial earlier this year of the landowners’ request for an extension of time to allow the temporary sandbags to remain, the revetment appears poised for removal. But given the pace at which the county has moved to enforce those permit conditions, it could be years before anything is done.
In December 1996, Dee Crowell, county Planning Director at the time, authorized an emergency Special Management Area (SMA) permit and shoreline setback variance, and the DLNR Land Division issued an emergency right-of-entry permit to allow for the construction of the revetment. (No state Conservation District Use Permit, or CDUP, was issued, however.)
In his permit approval letter to one of the landowners, Crowell noted that state law allows variances to be granted for “private improvements within the Shoreline Setback Area that will neither adversely affect beach processes, or artificially fix the shoreline, provided that hardship will result if the improvements are not allowed.”
“The proposed measures are removable and temporary and do not represent an irreversible fixing of the shoreline,” he wrote.
Included in the SMA permit were a number of conditions that the landowners would appear to have violated in the years that followed. Condition 2 required the revetment to be placed at the bottom of a slope fronting the homes, “as far mauka as possible, but in no case shall the structure extend beyond the shoreline as defined in [Hawai`i Revised Statutes] Chapter 205A.”
Condition 5 stated that the protection measures were to be temporary until acceptable permanent measures could be approved through the normal permitting process. Under Condition 7, the landowners were responsible for inspecting and maintaining the revetment and for immediately implementing corrective actions should it adversely affect the shoreline or SMA resources. And under Condition 8, within one year of the emergency permit’s approval, the landowners were to have submitted a professional assessment of the revetment’s effectiveness, impacts to the shoreline, and recommendations for additional action.
After the revetment was installed in early 1997, however, no report was forthcoming and none of the landowners appeared to have made an effort to seek a permanent solution. In fact, one by one, between 1999 and 2009, they sold their lots, pocketing millions of dollars in some cases.
It’s unclear what efforts the county made to enforce the permit conditions in the early years. (Planning Department staff says the original case file is “missing from our office.”)
The DLNR, at least, appears to have aided in the revetment’s preservation by permitting — in 2000, 2002, 2003, and 2006 — the landowners’ efforts to bulldoze sand that had accumulated on the beach onto the sandbags, which had been repeatedly exposed by waves.
A Turning Point
By 2007, some Ha`ena residents were fed up with the revetment and the efforts to preserve it and started taking action.
The last sand-pushing event in 2006 “really was major,” says Diamond. “We had some sand buildup and they took all of it.”
So the following year, when one of the new landowners, the Catherine M. Bartness Trust, sought a shoreline certification for the construction of a new house, Ha`ena residents Beau Blair and Barbara Robeson accompanied DLNR and county staff on an inspection of the revetment. What they found was that an illegal irrigation system to foster naupaka growth had been installed over the revetment, seaward of the shoreline. It was eventually removed.
Then in January 2008, Diamond and Blair appealed the DLNR’s shoreline certification, which set the shoreline at the top of the bluff just above the revetment. They argued that the shoreline was incorrect “due to the presence of a sandbag revetment and that failing portions of the revetment constitutes encroachments or violations that prohibit the certification of a shoreline.”
Investigating Diamond’s and Blair’s claims, Morris Atta, DLNR Land Division administrator at the time, wrote Kaua`i planning director Ian Costa on May 27, 2008, inquiring about the status of the county permits for the revetment.
“The Department is concerned that the subject structure has surpassed the temporary emergency nature and is concerned with the adherence to conditions 2, 5, and 7 of the emergency SMA related to the shoreline and the temporary nature of the structure. Based on this, the department concludes that the revetment is now unauthorized, due to the expiration of the temporary approval granted by the emergency SMA permit.”
Atta asked the county to provide a determination on the validity of the revetment and the emergency SMA permit. Otherwise, the DLNR would presume the revetment was unauthorized.
While the Land Division awaited the county’s response, the OCCL informed the landowners on July 28, 2008, that it was denying their request for another round of sand pushing. The agency noted that “sand pushing/scraping can destabilize the beach profile and actually increase beach loss and coastal land loss. This can, in some cases increase the steepness of the beach profile and accelerate erosion processes.”
Costa’s response to Atta on July 30 effectively put the brakes on any effort by DLNR staff to take action regarding the revetment.
“Please be advised the Planning Department’s position is that the referenced permits are and remain valid until a formal notice to rescind or revoke the permits is issued by our Department,” Costa wrote.
He assured Atta that the Planning Department intended to inform the landowners that conditions regarding efforts to seek a permanent solution and to monitor and assess the impacts of the revetment must be addressed. Costa did, indeed follow up with a letter to the landowners two weeks later, giving them until the end of August to respond.
Given the county’s position that the emergency SMA permit and shoreline setback variance were still in effect, the DLNR ultimately granted the shoreline certification after finding that Diamond and Blair lacked standing to appeal.
In November 2008, Sharon Carroll and Robert Downs, owners of one of the two homes nearly destroyed by the 1996 event, wrote Costa, asking for more time to fulfill the Planning Department’s request for compliance.
“[W]e believe that our responses to your inquiries and our efforts to address the concerns you raise should be guided by a more specific and complete assessment of the effectiveness of the sandbags and any impacts on the shoreline and coastal environment. We intend to develop this information with the assistance of qualified professionals,” they wrote on behalf of all five landowners.
They went on to say that they had retained Elaine Tamaye of EKNA Services, Inc., and Ron Wagner, a professional surveyor, to assess what effects the revetment may have had on beach processes. Because beach measurements would need to be taken at various time throughout the year, they askedfor an extension to April 30, 2009, to meet Condition 8.
Based on the results, the landowners could better evaluate how deal with conditions regarding long-term protection measures and the required permits, they wrote.
Costa granted them an extension until June 30, 2009. That day came and went, and over the next couple of years, without any further extensions from the county, the landowners continued with their beach studies. At the same time, the Board of Land and Natural Resources granted two CDUPs to two of the landowners who wanted to build homes on their vacant lots. Although the Office of Conservation and Coastal Lands urged the landowners in the most recent CDUP case to remove the revetment or apply for a CDUP for a permanent shore protection, the agency ultimately supported the issuance of a permit for a house.
Both houses are set back far from the shoreline and probably won’t be adversely affected if or when the sandbag revetment is removed. What’s more, both CDUPs prohibit any future shoreline hardening, including the use of sandbags, to protect the homes.
Carroll and Downs provided the county with an interim beach monitoring report in late 2009, which suggested that the revetment was not harming the beach. They also stated that the revetment did not impede lateral access during the monitoring period. But according to Jim O`Connell of the University of Hawai`i’s Sea Grant program on Kaua`i, who reviewed their submittals at the county’s behest, their claims needed more verification.
For one, Downs’ statement that in most years, the highest wash of the waves “barely reaches or falls short of the visible sandbags” was contradicted by O`Connell’s firsthand experiences.
“Unfortunately, I was caught in the storm wave swash/uprush at the toe of the revetment during the December high surf,” he wrote in his report to the county, which included photos that “show evidence that waves have in fact swashed up to the bags more than likely impeding access during these high wave events.”
He recommended that the Ha`ena Beach Park lifeguards be questioned about the frequency and importance of high wave events and their impacts on safe access along the shore.
With regard to the revetment’s impact on the beach itself, O’Connell wrote, “Armoring of this particular dune … obviously prohibits some volume of sand from feeding the beach which otherwise would be a continual source of sand.”
He concluded, “While a revetment may provide temporary protection to the buildings, landward relocation of the building is the only short-term viable alternative that avoids adverse impacts to the beach, public lateral access, habitat, and the general marine environment.”
Despite his recommendation, the county allowed the landowners to continue their beach monitoring for a few more years.
It wasn’t until January 2014, five years after the county had initially sought compliance with the emergency SMA, that Downs and Carroll subitted a final monitoring report by EKNA. In a letter to current planning director Michael Dahilig, they wrote that Tamaye had found that over a 45-month period of monitoring, the beach fronting the revetment had actually accreted almost 15,000 cubic yards of sand. EKNA’s final report concluded that “the sandbag revetment does not have any apparent influence on the beach processes.”
Given that, Carroll and Downs proposed in a June 16, 2014 letter to Dahilig that, as a permanent solution, naupaka be allowed to grow over the revetment down to where the sand covers the bags, something they apparently tried to do, without authorization, years ago.
“The survey shows that this line has remained the same since 2005 until this year and that the sand is returning to this level in the current year. This will protect the bags from sun damage and vandalism. Also, palm roots are infiltrating the bags and holding them and the slope in place,” they wrote.
They also asked, again, that the sandbags be allowed to stay a little longer, at least until the end of 2015.
Six months after that request, Dahilig shot them down.
“Based on the amount of time that has lapsed since granting the Emergency SMA Permit, the department is unable to accommodate your time extension request,” he wrote.
He stated that their proposed solution would require a new SMA permit and “needs to be supported with documentation and shoreline studies.”
In addition, the proposal must meet the requirements of Ordinance No. 979, the county’s recently adopted shoreline setback legislation. Under the ordinance, a shoreline setback variance for a private structure that artificially fixes the shoreline may only be allowed under very strict circumstances. Specifically, the county Planning Commission must find that erosion would likely cause severe hardship to the applicant if the improvements are denied “and all alternative erosion control measures, including retreat, have been considered.”
Given that two of the homes are set back far from the shoreline, it’s unlikely that they would qualify for a variance to keep the revetment in place. Only two of the homes, those that were at risk in 1996, would be immediately vulnerable to erosion if the revetment were removed, but their lots are deep enough that retreat is possible.
Dahilig also noted that the DLNR had received complaints of wayward sandbags and had ordered the landowners to remove them.
“This department will not entertain any permit application until this matter is first resolved,” he wrote.
“The county has made their move,” by basically telling the landowners to take the revetment out or apply for a permit, says OCCL administrator Sam Lemmo. But since Dahilig’s January letter, neither the county not the landowners have taken any action. Planning Department staffer Jody Galinato stated in an email that “no further correspondence has been received nor have any of the applicants scheduled a meeting with the department to discuss this issue.”
Downs says he is trying to coordinate with the other landowners on an SMA permit application. “Removing the bags is not an option,” he says.
Although the county has refused to give any more time to the landowners to comply with the emergency permit, it’s unclear whether that means the permit itself has been revoked. When asked when the emergency SMA permit expires/expired, Galinato simply restated the permit’s conditions and stopped short of stating that the failure to meet those conditions — particularly Condition 8, which was to be met one year after the permit was issued — invalidated the permit.
For the DLNR’s part, Lemmo says he can’t help what did or didn’t happen at his agency in the past, but he can help advance the discussion of what’s to happen next.
“I told Caren I would support the county if they told the homeowners to remove the bags and provide some soft solutions like we did for the North Shore [of O`ahu],” he says. “If they ended up removing the bags, we would maybe allow some sand pushing.”
“If you took away the protection, the two people [whose homes are at the revetment’s edge] could have a problem very quickly,” Lemmo says.
Should the county decide to entertain an SMA permit, the OCCL would comment on the application and would likely also require the landowners to apply for a CDUP, he says.
It seems unlikely Lemmo would recommend a revetment as a permanent solution. Any such structure would eventually impact beach width, especially with sea level increasing, he says.
Still, “it’s in everybody’s interest to find an amicable, long-term solution. … It’s the same problem we’re facing at Sunset and Kammies [two beach areas on O`ahu’s North Shore]. How do we find a way to protect the beach assets?” he says.
Although the temporary revetment is already wholly within the Conservation District, Lemmo says he doesn’t feel he has the legal ability to enforce at this time.
And neither does the DLNR’s Land Division, it seems. The division often requires landowners to obtain a perpetual, non-exclusive easement for any structures encroaching onto state property, but according to DLNR land agent Ian Hirokawa, his division would only get involved in this case if any of the landowners needed a new shoreline certification (as they would if they applied for an SMA) or if the OCCL determined that the structure poses a problem.
If the revetment should ever become unpermitted, Hirokawa says, his agency would be concerned with it remaining on state land.
— Teresa Dawson
Volume 25, Number 2 August 2015