Above photo: The scene in front of the Royal Hawaiian last January. CREDIT: DOUGLAS MELLER
Among the bills that made it across the finish line in this year’s legislative session, several are designed to make enforcement of shoreline rules easier and improve nearshore water quality. Here are highlights:
No presets: Act 227 (Senate Bill 67) addresses the long-standing issue of resorts and hotels setting out umbrellas, lounges, and other amenities for guests on beaches, having the effect of limiting or removing altogether the ability of the public to enjoy the same areas.
Act 227 allows commercial beach equipment to be set out only when a customer “is physically present” and ready to use it. After the customer has finished using it, the new law states, “the commercial vendor shall expeditiously remove the commercial beach equipment.”
Violators face administrative fines of $5,000 for a first offense, $10,000 for a second one, and $15,000 for third and subsequent offenses.
While the first draft of SB 67 would have applied statewide to all public beaches, the applicability was limited after the bill’s first hearing in the House of Representatives to beaches on Maui and Oʻahu only. Or, as the law now states, it applies within counties having a population of “more than nine hundred thousand” or more than “one hundred thousand but fewer than one hundred eighty thousand.”
Credit for passage of this law belongs to the indefatigable Doug Meller. For years, decades even, Meller petitioned the Board of Land and Natural Resources to crack down on hotel presets, documenting his requests with photos clearly showing neat rows of empty lounges and furled and unfurled beach umbrellas set out on land that clearly belongs to the state and where public access should be unimpeded.
Meller objected in vain to the exclusion of Hawaiʻi County and Kauaʻi, calling it indefensible. He was more successful in winning inclusion of language that makes clear the new law applies to the state’s easement over the publicly-constructed, privately-owned part of Waikiki Beach between the Royal Hawaiian groin and Kuhio Beach Park. As photos included in his testimony clearly illustrated, the hotels along this stretch of Waikiki Beach have been among the worst offenders when it comes to presetting beach equipment.
The final bill clearly states that the preset ban applies to all beaches “under the jurisdiction of the department, including private beaches in which the state has an easement or other property interest.”
SMA Exemptions: Act 229 (House Bill 365) expands the list of actions exempt from having to obtain Special Management Area permits. Exclusions now include, among other things: traditional fishponds and traditional agricultural practices; installation, maintenance, repair, and replacement of public pedestrian and bicycle paths and associated improvements; removal of trash and invasive species; fencing to protect native habitats on conservation land; and Hawaiian traditional and cultural practices.
Seller Disclosures: In addition to all the disclosures that sellers are required to make to prospective buyers of real property, Act 239 (HB 1091) includes several more when the property in question lies within the shoreline area.
Under the new law, sellers shall disclose “all permitted and unpermitted erosion control structures on the parcel or on state land adjacent to the parcel, including expiration dates of permitted structures and any notices of alleged violation and fines for expired permits or unpermitted structures; and shall disclose the annual coastal erosion rate for the zoning lot as determined by historical analysis and shown on the Hawaiʻi Shoreline Study web map or its successors, and the current actual distance from the shoreline … of all structures on the parcel.”
The new law does not take effect until November 1, “to allow proper implementation,” as the House Committee on Judiciary and Hawaiian Affairs wrote in its report after hearing the bill.
Liens on Land: Act 236 (SB 1391) gives the Department of Land and Natural Resources what could be a powerful tool against landowners who do not remove unpermitted structures on state land in the Conservation District – such as, for example, those who have placed giant sand burritos or who have erected other erosion barriers to erosion on state land fronting their coastal properties.
The new law allows the DLNR to place liens on properties whose owners fail to remove encroachments on adjoining public land. Land Board chair Dawn Chang praised the bill in her testimony to the Legislature: “Lien recordation will assist in the collection of civil penalties, abatement costs, [and] administrative costs. … [The bill] will support the removal of harmful and dangerous unpermitted erosion control structures from state lands, thereby improving access to and helping to preserve public trust resources.”
The law also allows counties and other state agencies the same leverage against landowners who fail to remove encroachments on lands under their jurisdictions.
Kaʻiwi Coast: Act 235 (SB 1254) requires the Department of Land and Natural Resources to petition the Land Board to designate the Kaʻiwi Coast as a state park. The bill enjoyed enthusiastic support from groups that had been pushing for this for years.
Until the conference committee met, the bill had included language calling for an appropriation to the DLNR to cover planning and design expenses. The amount to be appropriated was always blank, but Land Board chair Chang suggested $1 million would be adequate. The conference committee removed the appropriation language altogether.
Stormwater Management: Act 234 (HB 234) amends Chapter 46 of Hawaiʻi Revised Statutes, which sets forth the powers of the counties and the limits on them. One of those powers, in place since 2015, is to “establish and charge user fees to create and maintain any stormwater management system or infrastructure.”
House Bill 1101, which would qualify this power, was introduced as part of the governor’s package at the request of the Department of Transportation. As initially drafted, it would exempt from user fees all state agencies with a stormwater management system that connects to a county system and it would prevent the counties from enforcing penalties for non-payment of fees.
Testimony from the DOT noted that the department, like Honolulu and Maui County, has its own Municipal Separate Storm Sewer System (MS4) and National Pollutant Discharge Elimination System (NPDES) permits. All told, the department claims to spend around $24 million a year on its stormwater programs ($6 million for the Airports stormwater systems, $2 million for Harbors, and $16 million for Highways). At certain points, the City and County of Honolulu discharges stormwater into the DOT systems, at no cost to the city, the DOT testimony stated.
The City and County of Honolulu Facilities Management Department of Facility Maintenance was in strong opposition. According to testimony from Dawn Szewczyk, over the last three years, her department “has undertaken a comprehensive program to develop a stormwater utility and fees” as provided by Chapter 46.
“DFM has determined that it currently spends approximately $92 million per year on stormwater services but is expecting that cost will need to increase upwards to around $122 million in order to run a right-sized program,” Szewczyk stated. “A blanket exemption of state facilities … undermines this important element of equity and fairness. In fact, equity and fairness are the core purposes of adopting a stormwater fee: Today, the full cost burden is on taxable properties, with the greatest impact on residential property owners. Under a stormwater utility, everyone would pay a fair share based on stormwater runoff generated from impervious surfaces. It is notable that the Clean Water Act itself requires all federal agencies (which own nearly 17 percent of the impervious area on Oahu) to pay duly adopted local stormwater fees.”
State properties make up around 14 percent of the total impervious area on Oʻahu, she said. But under the fee structure her department is proposing, each state agency had the means to reduce its fees by up to 60 percent, “by implementing beneficial water capture, green infrastructure, and stormwater management practices on site.”
Harbor users, including Matson Navigation Co. and the Hawaiʻi Harbor Users Group, were supportive. Representatives of real estate management interests were opposed.
As the bill moved through the various committees of the House and Senate, it was amended several times. In its final form, it caps at $1.5 million a year what counties can charge to the DOT for stormwater services and prohibits the counties from withholding services for nonpayment of fees.
— Patricia Tummons
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