Bills Facilitating Shoreline Easements Fail For Fifth Year at Legislature

posted in: March 2017 | 0

For the fifth year in a row, bills intended to make it easier and cheaper for landowners to retain legally built shoreline structures that, through shoreline erosion, are now on public land have either been stalled or deferred.

Senate Bill 986 relating to special shoreline encroachments passed first reading, but has gone nowhere since. Its companion, House Bill 1120 was deferred on February 3. Once again, the main proponent of the bills has been the state Department of Land and Natural Resources, which has been required by statute to secure fair market rent for the easements (which require approval from the Board of Land and Natural Resources) that allow shoreline encroachments to remain.

In recent years, in light of decisions by the state Supreme Court that indicate that the state owns all lands within the high wash of the waves, the DLNR’s Land Division has sought easements for any structures that are discovered through the shoreline certification process to be within that zone. Some of those easements cost tens of thousands of dollars and in at least one case, a landowner who paid for his easement had to pay again when a newer shoreline certification revealed that the high wash of the waves had retreated further inland.

The shoreline encroachment bills, if enacted, would allow landowners to pay less than market rates for their easements. In testimony, DLNR directors have indicated that the department is more concerned with securing insurance and indemnity protection for the encroachments than it is with collecting fair market rent.

“Many of these structures are now situated within or seaward of the shoreline and are a liability concern,” DLNR director Suzanne Case wrote in her testimony on HB 1120.

“Enactment of this measure will not negatively impact beach resources or proliferate shoreline hardening,” she continued, adding that before presenting a shoreline encroachment easement request to the Land Board for approval, “all such requests are subject to review by the Department’s Office of Conservation and Coastal Lands (OCCL). As part of their review criteria, OCCL examines whether the continued presence of the encroachment will detrimentally impact the existing coastal resources.”

Despite the DLNR’s assurances, the state Office of Planning has consistently submitted testimony warning that the bill “opens a door to private property owners to maintain their existing shoreline structure, and likely requests for repairs, as well as emergency repairs of their existing shoreline structures.” As OP director Leo Asuncion noted in his February 3 testimony, “HB 1120 encourages the preservation of the existing shoreline structures, which is opposite to the increasing efforts to deal with the threats of coastal hazards on Hawai`i’s coasts.”

Dr. Chip Fletcher, associate dean of the University of Hawai`i’s School of Ocean and Earth Science and Technology, expressed a similar sentiment at a state-sponsored workshop on sea level rise days earlier. He pointed to the “rule of thumb” adopted by the Dutch, who he said have been living below sea level for centuries. Their motto: “If you wage war with water, you will lose.” With that in mind, he said that his advice to those with shoreline structures threatened by inundation is to “yield and elevate.”

Apparently, the state Legislature has been more sympathetic to Fletcher’s and Asuncion’s positions. As DLNR Land Division administrator Russell Tsuji explained to Land Board members wondering why the bills have never passed, “some of the comments by certain legislators, they don’t believe structures should be along the shoreline. They think they should be removed. Period.”

Surge Protection

When it comes to the DLNR’s efforts to obtain shoreline encroachment easements, there’s no proactive effort to identify offending structures. The department has only sought easements when the shoreline certification process, often triggered by a landowner’s desire to maintain a seawall or build within the county Special Management Area, identifies an encroachment.

Over the years, the Land Board has been seeing more and more requests for such easements. Most recently, at its January 27 meeting, it approved an easement for a portion of the Ka`anapali Beach Walk on Maui. Although it was legally built within the SMA, 80 to 90 feet of it is now considered to be within the shoreline. Upon the recommendation of the OCCL, some of the encroachments will be removed; only those that facilitate safe lateral access by the public will be covered by the easement.

While some individuals, including former DLNR director Peter Young and land use attorney Randy Vitousek, have argued that the agency is improperly jumping to conclusions of state ownership based solely on a shoreline certification, Land Board member Chris Yuen has said that the easement route is the “path of least resistance” to settle encroachments. As the DLNR’s Tsuji pointed out, the state’s shoreline certification rules are clear: “If we can’t resolve [encroachments], we can’t move the shoreline certification process forward.”

Land Board member Stanley Roehrig seemed to want the controversy over shoreline easements to be dealt with quickly.

“We have this discussion over and over again with OCCL. We talk about the North Shore during the winter time. Whose fault is it the waves washes into your property?… It’s all part of global warming. The boundary lines or whatever you want to call it are slowly, slowly, slowly making everyone’s property smaller,” he said, lamenting the fact that there is “no overall technique to be applied.”

“This really needs to be addressed on a regional basis,” he said.

And it should be done sooner than later, if recent erosion modeling is correct.

Recent modeling to determine future erosion with rising sea levels confirms that the number of homes that will be threatened by ocean inundation will spike in the next decade and a half, according to Fletcher. As of 2006, erosion threatened 20 homes along Sunset Beach, he said at a workshop. “By 2030, under half a foot of sea level rise, this jumps to to 144 homes threatened by erosion. A little more rise in sea level, a little more erosion exponentially increases the number of homeowners looking to protect themselves from erosion,” he said.

— T.D.

For Further Reading

  • “Board Talk (Land Board Rejects Conservative Approach to Setback at Ha`ena)”, November 2006;
  • “Board Talk: Erosion, Kapa`a Lease, Coral Settlement, Turtle Bay,” July 2015
  • “Letter: UH Expert Urges Protection Of Beaches, Not Seawalls,” and “Board Talk: Shark Cull Permit, Palolo Violation, and Another Seawall Problem,” June 2015;
  • “DLNR, Land Board Seek Improvements to Handling of Shoreline Erosion Impacts,” May 2015;
  • “Board Talk (After Board Orders Seawall Removal, Landowner Agrees to Easement Terms),” June 2012;
  • “Board Talk (Standoff Over Seawall Nears Resolution),” March 2012;
  • “State Dings Beachfront Landowner for Encroaching, but ‘Legal,’ Wall,” February 2010.

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