On July 9, Maui’s Kai Nishiki and Kaua‘i’s Caren Diamond — both well-known advocates for public beach access — requested a contested case hearing on the state Board of Land and Natural Resources’ approval of an amended version of the Department of Land and Natural Resources’ small-scale beach restoration program.
The department’s Office of Conservation and Coastal Lands, which administers the program, had proposed an updated version that would have, among other things, streamlined the permitting process. Earlier this year, the state Legislature passed what became Act 162, which waived the requirement for a water quality certification for certain small-scale beach restoration (SSBR) projects.
“[S]ome standard best management practices (such as complete dewatering of sand sourced from directly offshore) require double or triple handling of material (this practice would not be necessary where the sand source is clean Hawaiian beach sand), which drives up project costs to a point that is prohibitively expensive. Thus, not requiring a Section 401 Water Quality Certification for SSBR projects would result in a considerable reduction in project costs, would allow more efficient project delivery, and more effective/ efficient administration of water pollution controls; but most importantly, it would keep beach sand where it belongs, which is on our beaches,” wrote DLNR director and Land Board chair Suzanne Case in her testimony supporting the bill.
When the OCCL brought its new program to the Land Board for approval last month, several community groups and members of the public testified in opposition.
Malama Kua‘aina, on behalf of which Diamond — its executive director — requested a contested case hearing, complained that the OCCL’s outreach during the environmental review process on the program was practically non-existent and failed to meet the public participation objectives of the Coastal Zone Management Act.
The organization also complained about a temporary emergency sandbag revetment installed along five private properties in Ha‘ena nearly 25 years ago, that it says impedes lateral public access.
“Under the proposed SSBN, sandbag revetments like the ones that have plagued the Ha‘ena coastline will be allowed to remain in place through a streamlined and simplified permitting process. While this approach may be appropriate for some communities, it is certainly not appropriate for the North Shore of Kaua‘i,” it stated.
Its testimony continued that while the prior program, which expired in 2010, also provided for streamlined permitting, the proposal now before the board would also allow construction of sand stabilization structures, including “sand filled geotextile bags or tubes, stone filled marine mattresses, geotextile filter fabric, core stone, armor stone, steel or vinyl sheet pile, timber piles, and concrete, among others. … [T]the SSBN program that this board is being asked to approve on public trust lands is anything but small.
“Moreover, the SSBN allows the use of invasive mechanical systems and heavy equipment – such as excavators, cranes, bulldozers, front-end loaders, and other earth moving equipment – in performing beach nourishment activities. Streamlining mechanical manipulation of public beach resources by private landowners is misguided at best.”
The group lamented that the OCCL’s proposal failed to consider managed retreat in its environmental assessment, arguing that the activities proposed under the program “merely provide a temporary band-aid fix to the larger systemic problem with our state’s coastal management.”
It also argued that “taking a statewide approach to shoreline management, rather than evaluating shoreline management proposals on a case-by-case basis, prevents the board from exercising its due diligence to ensure the actions it takes do not impact Native Hawaiian traditional and customary rights.”
Finally, with regard to an issue Diamond has successfully pursued all the way to the Hawai‘i Supreme Court, the group argued that the proposed new program, which allows the planting of vegetation on the beach, directly contradicts state laws that require the maintenance of beach transit corridors, free of human-induced vegetation.
During his defense of his office’s proposed program, OCCL administrator Sam Lemmo agreed with at least one argument made by Malama Kua‘aina, that small-scale beach nourishment is just a temporary fix.
He acknowledged that there are people who want to force shoreline retreat now. They want people to not simply plan for sea level rise adaptation, they want them to implement, he said.
“We all want that,” he continued, “but we don’t know how to do it. And simply playing hardball with people is not going to give us what we want. It’s going to backfire on us, in fact. We need to find a way forward that is manageable and economical and socially reasonable. …
“It’s like we’re simply trying to buy some time so we can reduce the pressure valve on everybody and maybe at the end of the day get a nice beach or save some of the beach sand that we have.”
“You can’t just force that on people without giving them solutions,” he continued. Using as an example a Maui condominium where the sea is dangerously close to making it unlivable and has had trouble with its efforts to halt further erosion, Lemmo argued, “What the hell’s the county going to do at Kahana Sunset? The building’s cracked. You know, are they going to condemn the building? Well guess what, they gotta pay them $30 million now. Or is everybody going to step aside and say let nature take its course and then we have a big mess?
“So I don’t know. I’m just flailing about here like everybody else, but trying to do it in a good way,” Lemmo said, adding, “I think this is a good program and I think we should go for it.”
With regard to Malama Kua‘aina’s concerns about what structures could be installed, Lemmo said that the proposed program “has absolutely zero to do with sandbag revetments. You could maybe put in a sandbag groin, but the purpose of a groin is to create a beach, not prevent erosion.”
On Lemmo’s suggestion that condemnation is the only option in cases like Kahana Sunset — a statement he later retracted — board chair Case noted, “Just for the record, I’m not sure the government would have to condemn [parcels] at full market value for something that’s seriously compromised, but it is a very thorny situation and lots to work through there.”
In the end, Land Board member Vernon Char moved to approve the program as proposed, but said he welcomed any amendments to address concerns raised by the public.
Board member Chris Yuen seconded the motion, while offering several amendments.
He would require all the Category 3 projects, which are those where more than 25,000 cubic yards of material would be placed on the beach or would include the construction of stabilization structures, to come to the Land Board for final approval, after the OCCL held a public meeting on it and a full Ka Pa‘akai and public trust analysis on its impacts was completed.
Also, the Office of Hawaiian Affairs would have to be consulted on all projects, private owners would be required to certify that they would not get a regulatory certified shoreline makai of their pre-construction shorelines, and OCCL staff would be given the authority to deny any projects if negative effects were found to outweigh the benefits.
“This is a really difficult issue and we need to make a decision of some sort. To not do anything at his point would be irresponsible I think,” board member Sam Gon said before voting in support of the motion. The motion passed, with board members Kaiwi Yoon and Doreen Canto voting in opposition.
Nishiki and Diamond then requested a contested case hearing. They had 10 days to follow up with written petitions. Should the Land Board grant the trial-like hearing, the new beach restoration program’s implementation would be on hold until the case is resolved.
— Teresa Dawson