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TC 224 M H39 1989 v.2 HAWAII SHORELINE EROSION MANAGEMENT STUDY VOLUME 11 APPENDICES CZIC FILE COPY FINAL REPORT JUNE HAWAII SHORELINE EROSION MANAGEMENT STUDY OVERVIEW AND CASE STUDY SITES (Makaha, Oahu; Kailua-Lanikai, Oahu; Kukuiula-Poipu, Kauai) Prepared by: Edward K. Noda and Associates, Inc. 615 Piikoi Street, Suite 1000 Honolulu, Hawaii 96814 and DHM inc. 1188 Bishop Street, Suite 2405 Honolulu, Hawaii 96813 Prepared for: Hawaii Coastal Zone Management Program Office of State Planning Office of the Governor June 1989 The preparation of this report was financed in part by the Coastal Zone Management Act of 1972, as amended, administered by the Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, United States Department of Commerce, through the Office of State Planning, State of Hawaii HAWAII SHORELINE EROSION MANAGEMENT STUDY Table of Contents VOLUME 1: Eage 1.0 Background and Overview ............................................................... 1-1 1.1 Study Purpose and Scope ...................................................... 1-1 1.2 Coastal Processes and Erosion in Hawaii .............................. 1-4 1.3 Probable Long-term Erosion Trends ....................................... 1-15 1.4 Methods for Estimating Long-term Shoreline Changes .......... 1-22 1.5 General Human Responses to Shoreline Changes - Shoreline Protection/Stabilization versus Erosion Management/Regulation ........................................... 1-26 2.0 Shoreline Protection/Stabilization ..................................................... 2-1 2.1 Range of Measures ................................................................. 2-1 2.2 Determining the Appropriate Structural Measure .................... 2-9 2.3 Measures Typically Used in Hawaii ......................................... 2-18 2.4 Typical Problems and Recommendations for Improving the Management of Shoreline Protection Projects .................. 2-25 3.0 Erosion Management and Regulation ............................................... 3-1 3.1 Management of Erosion: A Regulatory Perspective .............. 3-1 3.2 Federal Programs Related to Erosion Control and Practice in Hawaii .................................................................... 3-3 3.3 State Programs Related to Erosion Control and Practice in Hawaii ................................................................... 3-8 3.4 City and County of Honolulu Legislation and Practice ............ 3-13 3.5 County of Kauai Legislation and Practice ............................... 3-15 3.6 Other States' Programs Related to Erosion Control and Management .................................................................. 3-19 3.7 Recommendations for Improving the Existing Regulatory Regime in Hawaii .................................................................... 3-24 CZM EROSION MGMT STUDY Table of Contents (Cont'd) Page 4.0 Case Study Sites .............................................................................. 4-1 4.1 Methodology ............................................................................ 4-1 4.2 Case Study Site #1 - Makaha, Oahu ...................................... 4-6 4.3 Case Study Site #2 - Kailua-Lanikai, Oahu .......................... 1.4-34 -1 4.4 Case Study Site #3 - Kukuiula-Poipu, Kauai .......................... 4-75 5.0 Recommendations to Improve Erosion Management in Hawaii ........ 5-1, 5.1 Const raints Affecting the Improvement of Erosion Management in Hawaii ............................................. 5-2 5.2 General Recommendations to Improve Erosion Management in Hawaii ........................................................... 5-5 5.3 Proposed System to Improve Erosion Management In Hawaii ................................................................................ 5-10 EXHIBITS A. Shoreline Base Map for Case Study Site #1 - Makaha, Oahu B. Shoreline Base Map for Case Study Site #2 - Kailua-Lanikai, Oahu C. Shoreline Base Map for Case Study Site #3 - Kukuiula-Poipu, Kauai VOLUME III: APPENDICES A. Federal Register - Part 330, Nationwide Permits B. Chapter 205A, HRS, Coastal Zone Management; and H.B. 1902 C. Shoreline Setback Rules & Regulations, C&C of Honolulu D. SMA Rules & Regulations, C&C of Honolulu E. Shore Districts, Comprehensive Zoning Ordinance, Kauai County F. Shoreline Setback Rules & Regulations, County of Kauai G. SMA Rules & Regulations, County of Kauai H. Florida's Beach and Coast Preservation Program 1. A Handbook for Development in North Carolina's Coastal Area J. Wave Refraction Analysis K. Aerial Photo Analysis Overlay Plots for Case Study Site #3, Kukuiula-Poipu, Kauai CZM EROSION NIGIVIT STUDY ii I I I I I I I I VOLUME 11 I I I I I I I I I I CZM EROSION MGMT STUDY i APPENDIX A FEDERAL REGISTER Part 330, NATIONWIDE PERMITS Thursday - November 13, 1986 Part 11 Department of Defense Corps.of Engineers, Department of the Army 33 CFR Parts 320 through 330 Regulatory Programs of the Corps of Engineers; Final Rule 41254 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations (vii) Description of improvements Department, whether such ti ~2p~ mod~i~r~catio~s, ~V~ any. to the nationwide navigation not listed in paragraph (c)(5) within or outside the navig~:~b~ql~t ~~rre~acs~c~)~r permits can be ob~t~a'~qined from the of this section: (c) Specific inquiries regarding the appropriate district engineer. (4) Nature and location of significant jurisdiction of the Corps of Enginee ~qj Nationwide permits are designed to obstructions to navigation in portions of can be answered only after a I allow certain activities to occur with the waterbody used or potentially determination whether (1) the w ers little, if ~anv, delay or paperwork. capable of use in interstate commerce: are navigable waters of the U~ni d Na~t~qionw~6q4e permits are valid only if ~th~c~- (5) Authorized projects: States or (2) if not navigable, ether conditions applicable to the nat~qion~i~v~ide (~i)~Natu~re, condition and location of the proposed type of activity ay permits are met. Failure to comply with any improvements made under projects nevertheless so affect the na i8able a condition does not necessarily mean authorized by Congress- waters of the United States at t~qhe the activity cannot be authorized but (ii) Description of projects authorized assertion of regu~q]Rtory ju ~' diction is rather that the activity can only be but not constructed: -its deemed necessary. authorized by an individual or regional (~i~ii) list of known survey docum~e, permit. Sex-era] of the nationwide or reports describing the w~a~qterbod~y: ~qJ 329.16 Use and ma~in~t nc~e of lists of permits require notification to the (6) Past or present interstate determinations. district engineer prior to commencement commerce: (a) Tabulated lists f final of the authorized activity. The (~j) General typ~ps. extent, ~a~nd period in determinations of n ~qi~qg~abil~qi~qty are to be procedures for this notification are time-. maintained in ea~c ~qistrict office, and located at ~q1330.7 of this Part. ~s (ii) Documentation if necessary: be updated as ne ss~qit~a~ted by court Nationwide permits ca~'n be issued to (7) Potential use for interstate uri~s ~qi satisfy the requirements of section ~q10 of decisions, jur~i~sd t~ional inquiries. or commerce, if applicable: other changed nditio~ns. the Rivers and H~arb~O~Y'~s Act of 18~99. (~i) If in n~a~lu~r-~a~ql condition. (b~q) It shoul e noted that the lists section 404 of the Clean Water Act, (~ii) If improved: represent on those wate~rbodie~s for and for section 103 of the Marine ~ (8) Nature of jurisdiction known to which deter ina~tions have been made; ~qP~r~ot~lection, Research and Sanctuaries have been exercised by Federal absence f~r that list should not be Act. The applicable authority is gencies if any: taken as indication that the indicated at ~the ~e~rd of each nationwide (~) State or Federal court decisions ~qw ~4 rbo is not navigable. permit. relating to ~n~av~qi~qga~qb~qi~l~l~i~fy of ~the (c) D et~qions from the list are not a w~terb~dy, if an~qy: ~autho zed. If a change in status of a ~q�330.2 Definitions. (10) Remarks: wate ody from navigable to non- (a) The definitions of 33 ~8qCFR Parts (11) Finding of r~i~d~-vi~qga~qb~qi~qli~ly (with date) nav~* able is deemed necessa~r~@y, an 321~-329 are applicable to the terms u~s~vd and recommendation for determination: up ~ated finding should be forwarded to in this Part. ~132~.15 Inquiries regarding division engineer; changes are not ~q@b) The term "headwaters" means the ns~qidered f~qi~i~2qZ until a determination determinations, by the ~qd~i~v~qi point on a non-tidal stream above which (a) Findings and determinations the av~e~ir~age annual flow is less than five should be made whenever a question PART 330~q-NATIONWIDE PERMITS cubic feet per second. The district arises regarding the navigability of a engineer may estimate this point f~rorn w~terb~dy. Where no determination h Sec. available data by using~t~q@e mean annual been made, a report of findi s will b 330.1 Gener~t~il. area precipitation, area drainage basin 330.2 Definitions. prepared and forwarded to ~0q1~q1~,~qg~e divis~' n 330.3 Activities o~c~cur~in~g before c~er~l~a~in maps, and the average runoff coefficient. engineer, as described ab ~a. ~qI~nq dates. or by similar means. For streams that ~0~% rim u~qi~2qtes ~1~10A Public notice, may be answered by an ~qinte re~i y are dry for long periods of t~qhe year, which indicates that a final ~agen ~, 330.5 Nationwide permits. district engineers may establish the determination ~rust be made by ~a 330.~6 Management practices. "headwaters" as that point on the division engineer. If a need de~v lops for 330.7 Notification Procedures. stream where a flow of five cubic feet an energen~c~qy determination, ~s~t~-~r~ict 330.8 Discretionary Authority~. per second is equaled or exceeded 50 engineers may act in rel~i~a ~,an a330~.~9 State water quality certification. percent of ~qt~qhe time. finding prepared as in ~qSecti n 3~-9~9.14 of 330~.~!~0 Coastal Zone Management (c) Discretionary authority means the this Part. The report of fin ~Ing~s should ~ consistency determination. authority delegated to division engineers 3.~30.11 Nationwide permit verification. then be forwarded to the iv~qis~qion 330.12 Expiration of nationwide permits. in ~q1330.8 of this part to override engineer on an expedite basis. Authority: 33 U~.S.C. 401 et seq.; 33 U.S.C~. provisions of nationwide permits, to add (b) Wh d !ermine ons have been 1~3~q"~; 33 U.S.C. 1413. regional conditions, or to require ,ere et~qi~6qX~in made b ~'e~qh~qe die 'on ~qgineer, inquiries individual permit application. ~y ~" ~' ~s regarding ~t~qhe nuv~,~,~q!~q8~O~n~j ~qi ~*~q@~y of specific ~qJ 330.1 General. f 330.3 Activities occurring before certain portions of w~ql~et~aet~rbo imes co~qb~vered by The purpose of this regulation is to n i i I _~qy dates. these determ~qi ~c e answered describe the Department of the A~rmy~*s as follows: (DA) nationwide permit program and to The following activil~qies were This D~qep~qar~0qim t~q, in the list all current nationwide permits which permitted by nationwide permits issued administration f the laws enacted by have been issued by publication herein. on July 19, 1977, and unless modified do Congress for ~qa protection a~qnd A nationwide permit is a form/of general not require further permitting: preservation f t~36qA navigable waters ~qo~4qf permit which may authorize activities (a) Discharges of dredged or fill the United ~qa~0qte~qs, has determined that throughout the nation. (Another type of material into waters of the United States ~q[R~2qi er) (~2qBa~4qy) (Lake, etc.) is a general permit is a "regional permit" outside the limits of navigable waters of n~ev~qi~qgab~ql~q, water of the United States and is issued by division or district the United States that occurred before from to Actions which engineers on a regional basis in the phase-in dates which begar. July 25, a D e~-s ~0 ~qep ~stra r ~6~q8 for ~q,~qn ~6qm ~qa p t ~qr ~n ~qr ~qm a I e ~i~n e a a ~0 d I d ~n e d ~qb ~r e ~n ~q'~_ ~q0~q' a ~ao y ~C~u ~1~1~1~1~t e ~2q/~nn S e~ct~) n 32~9 fI g n nsh ~t~qh~.~.~. e~"~r~"~O~' te b~a~s~qis.~, a ~ons haveI .~q8in~ee r~,~qi~nq ~q1~;~.t~v~, of 'I) ~c~qi~, e ~0q1~6qh ~rva tion f ni~qted ~qt~qa~0qte~qs~q, I ~q(R~qI er) ~6q(~2q1~8q3a~q% ~ab ~0qW~q' ter of to_ ~qy ~qr~q,~q% ~qj modif r otherwise affect those waters accordance with 33 C~8qFR Part 325). 1975, and extended section 404 are ~su ~qject to th~qajur~8qisd~4qiction of this Copies of regional conditions and jurisdiction to all waters of the United ~0 Federal Register 1~ Vol. 51, No. 219 / Thursday, November 13, 1986 Rules and Regulations ~ 41255 States. (These phase-in dates are: After . (~~)Th~ repair, rehabilitation, or separation scheme (where such limits July 25, 1~97~s~. discharges nto navigable replacement of any previously have not been designated or where adjacent wetlands; after September 1. structure or fill, or of any currently engineers will consider recommending waters of the United States and authorized, currently serviceable, changes are anticipated, district 1976. discharges into navigable waters serviceable structure or fill constructed the discretionary authority provided by of the United States and their primary prior to the requirement for 330.8 of &is Part, and further subject to tributaries, including adjacent wetlands. authorization, provided such repair, the provisions of the fairway regulations and into natural lakes, greater than 5 rehabilitation, or replacement does not in 33 CFR 322.5~q(1~q) (Section 10). acres i~n surface area; and after July 1. result in a deviation from the plans of (~q9) Structures placed within anchorage 1977, discharges into all waters of t~qhe the original structure or fill, and further or fleeting areas to facilitate moorage of United States.) (Section 404) provided that the structure or fill h~as not vessels where such areas have been ~8qN Structures or work completed been put to uses differing from uses established for that purpose by the U.S. before December 18,1968, or in specified for it in any permit authorizing Coast Guard. (Section 10) waterbod~qies over which the district Its original construction. Minor (10) Non-commerc~ial, ~s~qin~qg~qle~-boat. engineer had not asserted jurisdiction at deviations due to changes in materials mooring buoys. (Section 10) ~t~qhe time ~qt~qhe activity occurred provided, ~:~)r construction techniques and which (11) Temporary buoys and markers in both instances, there is no ire necessary to make repair. placed for recreational use such as interference with navigation. (Section rehabilitation, or replacement are water skiing and boat racing provided 10) permitted. Maintenance dredging and that the buoy or marker Is removed be~s~ic~qh restoration are not authorized by within 30 days after its use ~qhas been ~1330.4 Pub~0~c notice. &is nationwide permit. (Section 10 and discuntinued.~2qAt Corps of Engineers (a) Chief of Erg~qin~e~er~v. Upon proposed 404) reservoirs, ~t~qhe reservoir manager must Issuance of new nationwide permits, (4) Fish and wildlife harvesting approve each buoy or marker modification to. or re~qissu~ance of, devices and activities such as pound individually. (Section 10) existing nationwide permits, the Chief Of nets, crab traps, eel pots, lobster traps, (12) Disc~ql~iar~qge of material for backfill Engineers will publish a notice in the duck blinds, and clam and oyster ~0 or bedding for utility lines. including Federal Register seeking public d~i~qg~qg~qi~a~qg. (Section 10) ou~tfall a~nd intake structures, provided ~in~qg the opportunity comments and includ (~q5) Staff gages, tide gages, water there is no change in preconstruction for a public hearing. This not-Ace will re~co~rdi~r~qg devices, water quality testing bottom contours (excess material must state the availability of information at and improvement devices. and similar be removed to an upland disposal area). the Office of the Chief of En~qg~fneers and scientific structures. (Section 10) A "utility lire" is defined as any pipe ~qor at all d~;s~qt~lict offices which reveals the (6) Survey activities including core pipeline for ~qL~q1~;e transportation of an Corps' provisional d~eter~qmi~rati~on that ~E~amp~qlin~qg~, seismic exploratory ~aseous, ~qI~;~qqu~*d, liqui~qriable, or slurry ~qy the proposed acti~vi~t~les ~co~i~nply with ~qLie operations, and plugging of seismic shot ~0 ~q:ubs~qtance~', f~o~.~.r any purpose, and any requirements for issuance under general ~qlio~q!~e~i~ and other exp~l~ord~qtory-typ~e bore cable. line, or wire for the transmission it ~au~l ~o~l p~Er~:n~, ~t~qhority. Chief of Engineers holes. Drilling of ex 'oration-type bore I for arty purpose ~a~- electrical energy. Will prepare ~"~)~,~,~is information w~q1~i~qich will h~ole~v for oil a~in~qd ~qS~d~s ~aot- telephone and telegraph messages, and be ~supp~ql~e~nne~nt~ed~, if ~i~ni~qppropr~i~2qWe, by a~t~st~l~4~or~i~7~ed by this nationwide per~n~u~t; radio and tel~evis~qi~cn co~qmm~un~qica~qf~qion. d~qi~v~-s~i~on en~qg~i~nE~er~s. the plugging ~Of such holes is.a~0qw~thorized. (The utility line and ou~tf~all and intake (b) District engineers. Concurrent (Se~qE~i~ql~qw~i~a~i ~qW kind s~tr~uct~u~'res will require a Section 10 ~~~v~qith publication i~r ~t~qhe Federal Re~l-~i~st~ar (7) O~utfall structures and associated permit if in navigable waters o~qf ~qt~qhe Elf proposed., new, or reissued intake s~qt~r~uctu~ies where the effluent from United States. See 33 C~qFR Part 322. See ~~@~a~t~qio~nwide permits by the Chief of ~' that DUt~qf~Z~-~ql~ql has been permitted under also paragraph (a)(7) of this section). ~qK~ig~qin~ee~rs~, district engineers will so the National Pollutant Discharge ~~ ~. by an Elirn ination System program (Section ~ot~:~,~'y the k~n~o~%M~' ~qi~r~!~er~qested public (S~a~o~, on 40~4) ~~pp~ropri~ate notice. The notice will 402 of ~qt~qhe CleanWater Act) (see 40 CF~qR (13) Bank stabilization activities in~-~qd~jud~e regional conditions, if any, Part 122) pro~-~qdd~ed that the district or provided: developed by the division engineer. division engineer makes a determination (~qI) The bank stabilization activity Is that the individual and cumulative less than 5~0qW feet in length; 330.~5 N~a~0qf~0qtnw~i~qd~e permits. adverse environmental effects of the (ii) The activity is necessary for (a) Authorized activities. ~8qT~qhe structure itself are minimal in eroson prevention: following are hereby p~e~.~-~T~n~q!~tt~!~6qA 3c~ccrd~ance with ~q1330.7 ~q(c)~q(2) and ~q(d). (~qf~qli) The activity is limited to less than provided thc~qY the conditi~qo~qf~qi~s ~qh~s~q'~i ~q3 ~qInt~e~ql~ce structures per se are not an average of one cubic yard p~qer in paragraph ~q(b) of this section a~nd, inc~ql~uded-~-only those directly associated running foot placed along the bank where required, comply with the with an ou~tfall structure are covered by within waters of the United States; notification procedures, of ~q1330~-7~. th ~.s~nationwide permit. This permit (iv) No materia~qtis placed in excess of ~q(1) The placement of aids to includes minor excavation, filling and the minimum needed for erosion navigation and regulatory markers other work associated with installation protection; which are approved by and Installed in of the intake and outfa~qll structures. (v) No material Is placed in any accordance with the requirements of t~0qhe (Sections 10 and 404) wetland area; U.S. Coast Guard (33 CFR Part ~4q68, (8~6q) Structures for the exploration, (v~8qi) No material is placed in any Subchapter C). (Section 10) production, and transportation of oil, location or in any manner so a~qs t~qo (2) Structures constructed in artificial gas, and minerals on the outer impair surface water flow into or out of n~0qtial continental shelf within areas leased for any wetland area; canals within principally reside, developments where the connection of such purposes by the Department of (Vill Only clean material free of waste the canal to a navigable water of the Inte:~qr~2qior, Mineral Management Service, metal products, organic materials, United States has been previously provided those structures are not placed unsightly debris, etc. is used; and authorized (see 33 C~2qF~16qR Part 322.5~4q(~2qg~0q)~0q). wit~20qHn the limits of any designated (v~2qiii) The activity is a single and (Section io~4q) shipping safety fairway or traffic complete project. (Sections ~0q20 and 404~0q) 43256 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1966 / Rules and Regulations (14) Mioor road crossing fills including includes 'the fill is licensed by the (23) Activities, work, and discharges fill attendant features, both temporary Federal Energy Regulatory Commission undertaken, assisted, authorized, and permanent, that are part of a single (FERC) under the Federal Power Act of regulated, funded, or financed, in v.,hole "i a and complete project for crossing 0 1920, as amended; has a total generating or in part, by another federal agency or non-tidal waterbody, provided that the capacity of not more than 1500 kw (2,000 department where that agency or crossing is culverted, bridged or horscpower); qualifies for 'the short-form department has determined, pursuant to otherwise designed to prevent the licensing procedures of the FERC (see 18 the CEQ Regulation for Implementing restriction of, and to withstand, CFR 4.61); end the district or division the Procedural Provisons of the expected high flows and provided engineer mak-es a determination hat the National Environmental Policy Act (40 further that discharges into any individual and cumulative adverse CFR Part 1500 at seq.), that the activity, wetlands adjacent to the waterbody do effects on the environment are minimal work, or discharge is categorically not extend beyond 100 feet on either in accordance with 1330.7 (c)(2) and (d). excluded from environmental side of the ordinary high water mark of (Section 4G4) documentation because it is included that waterbody. A "minor road crossing (16) Discharges of dredged or fill wiNn a category of actions which fill" is defined as a crossing that material into aoll waters of the United neither individually nor cumulatively involves the discharge of less than 200 States other than wetlands that do not have a significant effect on the human cubic yards of fill material below the exceed ten cubic yards as part of a environment, and the Office of the C@Aef plane of ordinary high water. The single and complete project provided the of Engineers (ATrN: DAEN-CW0-N) crossing may require a permit from the material is not placed for the purpose of -has been furnished notice of the US Coast Guard if located in navigable stream' d version. (Sections 10 and 404) agency's or department's application for waters of the United States. Some road (19) Dredging of no more than ten the categorical exclusion and concurs fills may be eligible for an exemption cubic yards from navigable waters of with that determination. Prior to from the need for a Section 404 permit the United States as part of a single and pproval for purposes of this nationwide altogether (see 33 CFR 323.4). D Istfici complete profect. This permit does not 'Plermit of any agency's categorical engineers are authorized, where local authorize the connection of canals or -exlcusions, the Chief of Engineers will circumstances indicate the need, to other* artificial waterways to navigable solicit comments through publication in define &,a term -expeL@e_d high flows cti on the Federal Register. (Sections 10 and for the purpose of establishing waters of the Uniled States (see Se applicability of "his nationwide permit. 33 CFR 322.5(g)). (Section 10) 404) (Sections 10 and 404) 120) Structures, work, and discharges (24) Any activity permitted by a state (15) Discharges of dredged or fill for the containment and cleanup of oil administeing its own Section 404 permit hazardous substances which are program for the discharge of dredged or material incidental to the construction of and fill material authorizeJ at 33 U.S.C. bridges across navigable waters of the subject to the National Oil and United States, including cofferdams, Hazardous Substances Pollution 1344(8)-(1) is permitted pursuant to abutmerts. foundation seals, piers, and Contingency Plan, (40 CFR Part 300), section 10 of the Rivers and Harbors Act provided the Regional Response Team of 1899. Those activities which do not temporary construction and access fills which is activated under the Plan involve a section @ 04 state permit are provided such discharge has been authorized by &,a US Coast Guard as concurs with the proposed containment not included in this nationwide permit part of the bridge permit. Causeways and cleanup action. (Sectiors 10 and but many will be exempted by section and approach fills are not included in 4-04) 154 of Pub. L. 94-587. (See 33 CFR this nationwide permit and will require (21) Structures, work, discharges 322.3(a)(2)). (Section 10) an individual or regional Section 4G4 associated with surface coal mining (25) Discharge of concrete into tightly permit. (Section 404 i activities provided they were authorized scaled forms or cells where the concrete (16) Return water from an upland, by the Department of the Interior, Office is used as a structural member which contained dredged material disposal of Surface Mining, or by states with would not otberwise be subject to Clean area (see 33 CFR 323.2(d)) provided the approved programs under Title V of the Water Act jurisdiction. (Section 404) state has issued a site specific or generic Surface Mining Control and Reclamation (26) Discharges of dredged or fill certification under section 401 of the L I Clean Water Act (see also 33 CFR engineer is given the opportunity to paragraphs (a)(26) (i) and (ii) of this. Act of 1977, the appropriate district material into the waters listed in 325.2(b)(1)). The dredging itself requires - review the Title V permit application section except those which cause the a Section 10 permit if located in and all relevant Office of Surface loss or substantial adverse modificatioi, navigable waters of the United States. Mining or state (as the case may be) of 10 acres or more of such waters of the The return water or runoff frorn a documentation prior to any decision on United States, including wetlands. For contained disposal area is that application; and the district or dibcharges which cause the loss or administratively defined as a discharge division engineer makes a determination substantial adverse modification of I to of dredged material by 33 CFR 3Z3.2(d) that the individual and cumulative 10 acres of such waters, including even though the disposal itself occurs on -idverse effects on the environment from wetlands, notification to the diStriLt the upland and thus does not require a such structures, work, or discharges are engineer Iis required in accordance with section 4G4 permit. This nationwide -n-Linimal in accordance with It 330.7 (c) section 330.7 of this section. (Section permit satisfies the techrucal (2) and (3) and (d). (Sections 10 and 404) 404). requirement for a section 404 permit-for (22) Minor work, fills, or temporary (i) Non-tidal rivers, streams, and theii the return water where the quality of the structures required for the removal of lakes and impoundments, including return water is controlled by the state wrecked, abandoned, or disabled adjacent wetlands, that are located through the section 401 certification vessels, or the removal of man-made above the headwaters. procedures. (Section 404) obstructions to navigation. This permit (B) Other non-tidal waters of the (17) Fills associated with small does not authorize maintenance United States, inc!uding adjacent hydropower projects at existing dredg-ing, shoal removal, or river bank wetlands, th&t are not part of a surface reservoirs whare the project which snagging. (Sections 10 and 404) tributary system to interstate waters clit Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 1 Rules and Regulations 41257 navigable waters of the United States engineer. If the district engineer or a category of waters by requiring (i.e., isolated waters). determines that such historic properties individual or regional permits; or (b) Conditions. The following special may be adversely affected, he will revoking an authorization on a case-by- cond;tions must be followed in order for provide the Advisory Council on case basis. This authority is not limited the nationwide permits identified --in Historic Preservation an opportunity to to concerns for the aquatic environment paragraph [a) of this section to be valid: cDmment on the effects on such historic as is the discretionary authority in (1) That any discharge of dredged or properties or he will consider � 330-8. fill material will not occur in the modification, suspension, or revocation proximity of a public water supply in accordance with 33 CFR 325.7. � 330.6 Management practIces. intake. Furthermore, that, if the permittee before (a) In addition to the conditions (2) That any discharge of dredged or or during prosecution of the work specified in 1330.5 of this Part, the fill material will not occur in areas of authorized, encounters a historic following management practices shall concentrated shellfish production unless property that has not been listed or be followed, to the maximum extent the discharge is directly related to a determined eligible for listing on the practicable, in order to minimize the shellfis@. harvestmo activity authorized' National Register, but which may be adverse effects of these discharges on by paragraph (a)[4) of this section. eligible for listing in the National the aquatic environment. Failure to (3) That the activity will not Register, he shall immediately notify the comply with these practices may be jeopardize a threatened or endangered district engineer, cause for the district engineer to species as identified under the (10) That the construction or operation recommend, or the division engineer to Endangered Species Act (ESA), or of the activity will not impair reserved take, discretionary authority to regulate destroy or adversely modify the critical tribal rights, including, but not limited the activity on an individual or regional habitat of such species. In ihe case of to, reserved water rights and treaty basis pursuant to 1330.8 of this Part. federal agencies. it is the agencies' fishing and hunting rights-, (1) Discharges of dredged or fill responsibility to comply with the (11) That in certain states. an material Into waters of the United States req,.,,irement@ of the ESk. If the activity individual state water quality shall be avoided or minimized through may adversely affect any listed species certification must be obtained or waived the use of other practical alternatives. or critical habitat, the district engineer (See � 330,9); (2) Discharges in spawning areas must initiate Section 7 consultation in (12) That in certain states, an during spawning seasons shall be accordance with the ESA. In such cases, individual state coastal zone avoided. the district engineer may: management consistency concurrence (3) Discharges shall not restrict or (i) initiate section 7 consultation and )aiust be obtained or waived (See impede the movement of aquatic species then. upon completion, authorize the 330.10); .activity kinder the nationwide permit by (13) That the activity will comply with indigenous to the waters or the passage adding, if appropriate, activity specific regional conditions which may have of normal or expected high flows or conditions, or been added by the division engineer cause the relocation of the water (unless (ii) Prior to or concurrent with section (See I 330.8(a)); and the primary purpose of the fill is to 7 consultation he may recommend (14) That the management practices impound waters). discretionary authority (See section listed in 1330.6 of this part shall be (4) if the discharge creates an 330.8) or use modification, suspension, followed to the maximum extent impoundment of water, adverse impacts or revocation procedures (See 33 CFR practicable. on the aquatic system caused by the 325.7). (c) Further information. (1) District accelerated passage of water and/or the (4) That the activity shall not engineers are authorized to determine if restriction of its flow shall be significantly disrupt the movement of an activity complies with the terms and minimized. those species of aquatic life indigenous conditions of a nationwide permit unless (5) Discharge in wetlands aritas shall to the waterbody (unless the primary that decision must be made by the be avoided. purpose of the fill is to impound water); division engineer in accordance with (6) Heavy equipment working in (5) That any discharge of dredged or 1330.7. wetlands shall be placed on mats. fill material shall consist of suitable -@42) Nationwide permits do not obviate (7) Discharges into breeding areas for material free from toxic pollutants (see the need to obtain other Federal, state or migratory waterfowl shall be avoided. section 307 of the Clean Water Act) in local authorizations required by law. All temporary fills shall be toxic amounts: (3) Nationwide permits do not grant (8) (6) That any structure or fill any property rights or exclusive removed in their entirety. authorized shall be properly maintained. privileges. 1330.7 Not1flestlon Procedures. (7) That the activity will not occur in a (4) Nationwide permits do not (a) The general permittee shall not component of the National Wild and authorize any injury to the property or begin discharges requiring pre-discharge Scenic River System; nor in a river rights of others. notification pursuant to the nationwide officially designated by Congress as a (5) Nationwide permits do not L permit at I 330.5[a)(26): the system, while the river is in an or p"roposed Federal project. (1) Until notified by the district study river" for possible inclusion in aul orize interference with any existing official study status; (d) Modification, Suspension or engineer that the work may proceed (8) That the activity shall not cause an Revocation of Nationwide Permits. The under the nationwide permit with any unacceptable interference with Chief of Engineers may modify, suspend. special conditions imposed by the navigation; or revoke nationwide permits in district or division engineer, or (9) That, if the activity may adversely accordance with the relevant (2) if notified by the district or affect historic properties which the procedures of 33 CFR 325.7. Such division engineer that an individual National Park Service has listed on, or authority includes, but is not limited to: permit may be required; or determined eligible for listing on, the adding individual, regional, or (3) Unless 20 days have passed from National Register of Historic Places, the nationwide conditions; revoking receipt of the notification by the district permittee will notify the district authorization for a category of activities engineer and no notice has been 41258 Federal Register Vol. 51, No, 219 / Thursday, November 13, im / Rules and Regulations received from the district or division together with a statement of the factors based on concerns for the aquatic engineer. pertinent to a determination of the environment as expressed in the (b) Notification pursuant to the environmental effects of the proposed guidelines published by EPA pursuant to nationwide permit at I 330.5(a)(26) must discharges, including those set forth in section 404(b)(1). (40 CFR Part 230) be in writing and include the the 404(b)(1) guidelines, and his views (a) Activity Specific conditions. information listed below. Notification is on the specific points raised by those Division engineers are authorized to not an admission that the proposed agencies. modify nationwide permits by adding work would result in more than minimal (3) If the nationwide permit at individual conditions on a case-by-case pacts to waters of the United States; it I 330.5(a)(21) is involved the district basis applicable to certain activities simply allows the district or division engineer will give notice to the within their division. Activity specific engineer to evaluate specific activities Environmental Protection Agency and conditions may be added by the District for compliance with general permit the appropriate state water quality Engineer in instances where there is criteria. agency. This notice will include as a mutual agreement between the district (1) Name, address, and phone number minimum the information required by engineer and the permittee. Furthermore, of the general permittee; paragraph (b) of this section. district engineers will condition N`WPs (2) Location of the planned work, (d) Division engineerreview of with conditions which have been (3) Brief description of the proposed notification. The division engineer will imposed on a state sect-on 401 water work, its purpose, and the approximate review all notifications referred to him quality certification issued pursuant to size of the waters, including wetlands, in accordarice with paragraph (c)(1) or 330.9 of this Part. which would be lost or substantially (c)(2) of this section. The division (b) Regional condit,*ons. Division adversely modified as a result of the engineer will require an individual engineers are authorized to modify work; and permit when he determines that an nationwide permits by adding (4) Any specific information required activity does not comply with the terms conditions on a generic basis applicable by the nationwide permit and any o&,er or conditions of a nationwide permit or I to certain activities or specific hiformation that the permittee believes does not meet the definition of a genera geographic areas within their divisions. priate. permit (see 33 CFR 322.2(f) and 323.2(n)) In developing regional conditions, (c) District enSineer review of including discharges under the division and district engineers will notification. Upon receipt of nationwide permit at � 330.5(a)(26) "' appro follow standard permit processingl notification, the district engineer will which have more than minimal adverse in 33 CFR Part promptly review the general permittee's environmental effects on the aquatic procedures as prescribed tion criteria of 33 notification to determine which of t@e environment when viewed either 325 applying the evalua following procedures should be cumulatively or separately. In reaching CFR Part 320 and appropriate parts of 33 followed: his decision, he will review factors CFR Parts 321, 322, 323, and 324. (1) If the nationwide permit at pertinent to a determination of the Division and district engineers will take 330.5(a)(26) is involved and the district environmental effects of the proposed appropriate measures to inform the engineer determines either, (i) the discharge, including those set forth in public of the additional conditions. proposed activity falls Mthin a class of the 404(b)(1) guidelines, and will give (c) Individual permits-(I) Cose-by- discharges or will occLr in a category of full consideration to the views, if any, of Case. In nationwide permit cases where waters which has been previously the federal and state natural resource additional individual or regional identified by the Regional agencies identified in paragraph (c) of conditioning may not be sufficient to Administrator, Environmental Protection this section. If the division engineer address concerns for the aquatic Agency; the Regional Director, Fish and decides that an individual permit is not environment or where there is not Wildlife Service; the Reg-Iona] Director, required, and a federal or appropriate sufficient time to develop such National Marine Fisheries Service; or state natural resource agency has conditions under paragraphs (a) or (b) of the heads of the appropriate state indicated in writing that an activity may this section, the division engineer may natural resource agencies as being of result in more than minimal adverse suspend use of the nationwide permit particular interest to those agencies; or environmental impacts, he will prepare and require an individual permit (ii) the particular discharge has not been a written statement. available to the application on a case-by-case basis. The previously identified but he believes it public on request, which sets forth his district engineer will evaluate the may be of importance to those agencies, response to the specific points raised by application and will either issue or dany he will promptly forward the the commenting agency. When the a permit. However, if at any time the notification to the division engineer and division engineer reaches his decision reason for taking discretionary authority the head and appropriate staff officials he will notify the district engineer, who is satisfied, then the division engineer of those agencies to afford those will ft ="ediately notify the general may remove the suspension, reacti-vating agencies an adequate opportunity before permittee of the division engineer's authority under the nationwide permit. , ouch discharge occurs to consider such decision. Where time is of the essence, the district notification and express their views, if engineer may telephonically recommend any, to the district engineer concerning 1330.6 Discretionary authority. that the division engineer ussert whether individual permits should be Except as provided in paragraphs Cc) discretionary authority to require an required. (2) and (d) of this sectfon, division individual permit application for a (2) If the nationwide permits at engineers on their own initiative or upon specific activity. If the division engineer 330.5(a) (7), (17), or (21) are involved recommendation of a district engineer concurs, he may orally authorize the and the Environmental Protection are authorized to modify nationwide district engineer to implement that Agency, the Fish and Wildlife Service, permits by adding regional conditions or authority. Oral authorization should be the National Marine Fisheries Service or to override nationwide permits by followed by written confirmaticn. the appropriate state natural resource or requiring individual permit applications (2) Category. Additionally, Zi-r ; -c- water qualityagencies forward concerns on alcase-by-case basis, for a category notice and opportunity for publi to the district engineer, he will forward of activities, or in specific geograpb1c hearing. division engineers may decide those concerns t. -the division engineer areas. Discretionary authority will be that individual permit applications Federal Register Vol. 51, No. 219 Thursday, November 13, 1986 Rules and Regulations 41259 should be required for categories of presumed. Upon receipt of an Individual consistency determination is required, activities, or in specific geographic or generic certification or a waiver of District engineers will not process an areas. However, only the Chief of cOrtification, the proposed work is permit application for an activity which Engineers may modify, suspend, or ailthorized under the nationwide permit. has been denied without prejudice revoke nationwide permits on a If a state issues a conditioned individual under the nationwide permit program statewide or nationwide basis. The certification, the district engineer will However, if the division engineer include those conditions that comply determines that it would otherwis division engineer will announce the a be decision to persons affected by the urith 33 CFR 325.4 as special conditions appropriate to exercise his discretionary action. The district engineer will then of the nationwide permit [see 33 CFR authority, pursuant to 1330.& to regulate the activity or activities by Part 330.8(a)) and notify the applicant override the nationwide permit or processing an application(s) for an that the work is authorized under the permits in question, he may do so, and individual permit(s) pursuant to* 33 CFR nationwide permit provided all the district engineer may proceed with Part 325. conditions are met. the processing of individual permit (d) For the nationwide permit found at (b) Certification requirements for applications. J 330.5(@)(26), after the applicable nationwide permits fall into the 1330.11 Nationwide permit verification. provisions of � 330.7(a) (1) and (3) have following general categories: been satisfied, the permittee's right to (1) No certificotion required (a) General permittees may and in proceed under the general permit may Nationwide permits numbered 1, Z 4.5, some cases must, request fro@ a district be modified, suspended, or revoked only 8, 9. 10, 11, and 19 do not involve engineer confumiation that an activity in accordance with the procedure set activities which may result in a complies with the terms and conditions forth in 33 CFR 325.7. 6dscharge and therefore 401 certification of a nationwide permit. District (e) A copy of all modifications or is not applicable. engineers will respond promptly to such revocations of activities covered by (2) CeTtification sometimes requiTed requests. The response will state that nationwide permits will be forwarded to Nationwide permits numbered 3, 6,7.13. the verification is valid for a period of the Office of the Chief of Engineers, 2:0, 21. 22, and 23 each involve various no more than two years or a lesser ATTN: DAEN-CWO-N. Eictivities, some of which may result in a period of time if deemed appropriate. 330.9 State water quality certification. discharge and require certification, and Section 330.12 takes precedence over (a) State water quality certification is others of which do not. State denial of this section, therefore, it is incumbent certification for any specific nationwide upon the permittee to remain informed required for nationwide permits which permit in this category affects only those of changes to nationwide permits. may result in any discharge into waters activities involving discharges. Those (b) If the district engineer decides that of the United States. If a state issues a ]lot involving discharges remain in an activity does not comply with the water quality certification which effect. includes special conditions, the district (3) Certificotion Tequired Nationwide terms or conditions of a nationwide engineer will add these conditions as permits numbered 12, 14, 15, 15, 17, 18, permit, he will so notify the person conditions of the nationwide permit in 24, 25, and 26 involve activities which desiring to do the work and indicate that that state. However, if such condi an individual permit is required (unless would result in discharges and therefore do not comply with the provisions of 33 401 certification is required. covered by a regional permit). CFR 325.4 or if a state denies a required (c) District engineers will take (c) If the district engineer decides that 401 ce.-tificatioi for a particular appropriate measures to inform the an activity does comply with the terms n P nationwide r)ermit, authorization for all public of which waterbodies or regions a d conditions of a nationwide ermi discharges @overed by the nationwide Within the state, and for which he will so notify the general permittee. permit within the state is denied without nationwide permits, an individual 401 In such cases, as with any activity prejudice until the state issues an wrater quality certification is required. which quPlifies under a nationwide LY ft, the general permittee's HE individual or generic water qualit perru :ht to certification or waives its right to do so. �330.10 Coastal zone management proceed with the activities under the A district erigineer will not process an consistency detennination. nationwide permit may be modified, individual permit application for an In instances where a state has not suspended, or revoked only In activity for which authorization has concurred that a particular nationwide accordance with the procedures of 33 been denied without prejudice under the permit is consistent with an approved CFR 325,7. natiorwide permit program. However, if coastal zone management plan, the division engineer determines that it authorization for all activities subject to 1330.12 Expiration of nationwicle permits. would otherwise be appropriate to such nationwide permit within or The Chief of Engineers will ew exercise his discretionary authority, affecting the state coastal zone agency's nationwide permits on a cont:tuivai Ibasis. pursuant to 1330.8. to override the area of authority is denied without and will decide to either modify, reissue nationwide permit or permits in prejudice until the applicant has (extend) or revoke the permits at least question, he may do so, and the district furnished to the district engineer a every five years. If a nationwide permit engineer may proceed with the coastal zone management consistency is not modified or reissued within processing of individual permit deterin,nation pursuant to section 307 of years of publication in the Federal applications. In instances %rhere a state the Coastal Zone Management Act and Register, it automatically expires and has denied the 401 water quality the state has concurred in it If a state becomes null and void. Authorization of certification for discharges under a does not act on an applicant*s activities which have commenced or are particular nationwide permit. applicants consistency statement within six months under contract to commence in reliance must furnish the district engineer with after receipt by the state, consistency upon a nationwide permit will remain in an individual or generic 401 certification shall be presumed. District engineers effect provided the activity is completed or a copy Df the application to the state will take appropriate measures to inform within twelve months of the date a for the certification. if a state fails to act the public of which waterbodies or nationwide permit has expired or waa within a reasonable period of time (see regions within the state, and for which revoked unless discretionary permit I 325-2(b)(1)(ii)), a waiver will be nationwide permits. such individual authority has been exercised in 41260 Federal Register / Vol. 51, No. 2!9 Thursday, November 13, 1986 Rules and Regulations accordance with 1330.8 of this Part or modification, suspension, or revocation procedures are initiated in accordance %ith the relevent provisions of 33 CFR 325.7. Activities completed under the authorization of a nationwide permit which was in effect at the time the activity was completed continue to be authorized by that nationwide permit. [FR Dor- W25301 Filed 11-12--86; 8:45 am] BRIM CODE $710-92-M APPENDIX B CHAPTER 205A, HAWAII REVISED STATUTES COASTAL ZONE MANAGEMENT AND H.B. 1902 205-36 PLANNING AND ECONOMIC DEVELOPMENT with associated structures used by public utilities as the term is defined section 269-1, wharves, docks, piers and other harbor and waterfront imp e- ments and any other maritime facility and water sport recreational facilit* may be permitted within the shoreline area; provided that the plans t efor are submitted for review and are approved by the agency after a publi earing has been held and that the appropriate state body has found th the proposed structures will result only in a minimum interference with atural shoreline processes; provided further that any such structure constru d by a governmen- tal body shall be exempt from the provisions of thii art except as to the requirement that two public hearings shall be held .1 the governmental body charged with such construction, once when the pKoject is first conceived and again when the project is substantially designe and planned, but prior to the letting of the contract. Repair strengthen' 2 e-; "I I iny, reinforcement, and maintenance of fishponds, and improvements for aquac ure farms shall be exempt from this chapter, upon issuance of a permit or w -er of the requirements for same by the board of land and natural resources. 1970, c 136, pt of �2; am L 1973, c 107, �1(5); am L 1975, c 27, �3; a 1976, c 57, �3] �205-37 Conflict of her laws. In case of a conflict between the requirements of any oth state law or county ordinance regarding shoreline ,h:n setback lines, t mot re trictive requirements shall apply in furthering the purposes of this pa - Nothing herein contained shall be construed to diminish the jurisdiction he state department of transportation over wharves, airports, docks, piers, all boat, or other harbors, and any other maritime or water rt rec ional facilities to be constructed on state land by the State; provide at such plans are submitted for the review and information of the office f the respective agency charged with the administration of the county zo i g laws, and found not to conflict with any county ordinances, zoning laws, d building code. [L 1970, c 136, pt of �2; am L 1973, c 107, �1(6)) CHAPTER 205A COASTAL ZONE MANAGEMENT PART 1. COASTAL ZONE MANAGEMENT SECTION 205A-1 DEFINITIONS 205A-2 COASTAL ZONE MANAGEMENT PROGRAM; OBJECTIVES AND POLICIES 205A.3 LEAD AGENCY 205A-4 IMPLEMENTATION OF OBJECTIVES, POLICIES, AND GUIDELINES 20SA-5 COMPLIANCE 205A-6 CAUSE OF ACTION PART H. SPECIAL MANAGEMENT AREAS 205A.21 FINDINGS AND PURPOSES 205A.22 DEFI-41TIONS 205A.23 COUNTY SPECIAL MANAGEMENT AREA BOUNDARIES 205A-24, 25 REPEALED 205A.26 SPECIAL MANAGEMENT AREA GUIDELINES 20SA-27 DESIGNATION OF SPECIAL MANAGEMENT AREA AUTHORITY 20SA-28 PERMIT REQUIRED FOR DEVELOPMENT 20SA-29 SPECIAL MANAGEMENT AREA USE PERMIT PROCEDURE 20SA-30 EMERGENCY AND MINOR PERMITS 205A-31 REPEALED 'he and term ise I d'In rf e" w a /en e t rotmp ecreationa' faci'it may tt he plans te@or are fter apubl. eanng has 'Ound th the proposed .with atural shoreline itru ed by agovernmen- art except as @o the spo s t 205A.32 PENALTIES 20SA-33 INJUNCTIONS 36 COASTAL ZONE MANAGEMENT 205A-2 Case Noes, Existence of chapter does not preclude private right of action to force beach access. 65 H. 383, 652 P.2d 1130. Chapter does not apply to any development. existing or planned. for which permits listed in L 1975, c 1776, �3 were issued or ordinances were passed prior to December 1, 1975. 4 H. App. 304, 666 P.2d 177. PART 1. COASTAL ZONE MANAGEMENT Note Former Pan 1, Long Range Goals, ��205A-1 to 3, repealed by L 1977, c 188, �2. �205A-1 Definitions. As used in this chapter, unless the context otherwise requires: .. "Agency" means any agency, board, commission, department, or officer of a county government or the state government, including the authority as defined in part 11; "Coastal zone management area" means the special management area after compliance pursuant to section 205A-23, and the waters from the shoreline to the seaward limit of the State's jurisdiction and any other area which the lead agency may designate for the purpose of administering the coastal zone management program; "Coastal zone management program" means the comprehensive statement in words, maps, or other permanent media of communication, prepared, approved for submission, and amended by the State and approved by the United States govemment pursuant to Public Law No. 92-583, as amended, and the federal regulations adopted pursuant thereto, which describes objectives, policies, laws, standards, and procedures to guide and regulate public and private uses in the coastal zone management area, provided however the coastal zone management program" is consistent with the intent, purpose, and provisions of this chapter; "Land" means the earth, water, and air above, below, or on the surface; "Lead agency" means the department of planning and economic develop- ment; "Person" means an individual, corporation, or partnership, and an organization or association, whether or not incorporated; "Shoreline" means the upper reaches of the wash of the waves, other than storm and tidal waves, usually evidenced by the edge of vegetation growth, or the upper limit of debris lert by the wash of the waves. [L 1977, c 188, pt of �3; am L 1979, c 200, �1; ain L 1983, c 124, �7) Revision Note Numeric designations deleted. �205A.2 Coastal zone management program; objectives and policies. (a) The objectives and policies in this section shall apply to both parts I and II of this chapter. (b) Objectives. (1) Recreational resources; (A) Provide coastal recreational opportunities accessible to the public. (2) Historic resources; (A) 'Protect, preser-@e, and, where desirable, restore those natural 37 205A.2 PLANNING AND ECONOMIC DEVELOPMENT and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture. (3) Scenic and open space resources; (A) Protect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources. (4) Coastal ecosystems; (A) Protect valuable coastal ecosystems from disruption and mini- mize adverse impacts on all coastal ecosystems. (5) Economic uses; (A) Provide public or private facilities and improvements important to the State's economy in suitable locations. (6) Coastal hazards; (A) Reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, and subsidence. (7) Managing development; (A) Improve the development review process, communication, and public participation in the management of coastal resources and hazards. (c) Policies. (1) Recreational resources; (A) Improve coordination and funding of coastil recreation plan- ning and management; and (B) Provide adequate, accessible, and diverse recreational opportu- nities in the coastal zone management area by: (i) Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas; (ii) Requiring replacement of coastal resources having signifi- cant recreational value, including but not limited to surfing sites and sandy beaches, when such resources will be unavoidably damaged by development; or requiring reason- able monetary compensation to the State for recreation when replacement is not feasible or desirable; (iii) Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value; (iv) Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation; (v) Encouraging expanded public recreational use of county, State, and federally owned or controlled shoreline lands and waters having recreational value; (vi) Adopting water quality standards and regulating point and nonpoint sources of pollution to protect and where feasible, restore the recreational value of coastal waters; (vii) Developing new shoreline recreational opportunities, where appropriate, such as artificial lagoons, artificial beaches, artificial reefs for surfing and fishing; and (viii) Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits by the land use commission, board of 38 land and natural resources, county planning commissions; COASTAL ZONE MANAGEMENT 205A-2 and crediting such dedication against the requirements of section 46-6. (2) Historic resources; (A) Identify and analyze significant archaeological resources; (B) Maximize information retention through preservation of re- mains and artifacts or salvage operations; and (C) Support state goals for protection, restoration, interpretation, and display of historic resources. (3) Scenic and open sp2Lce resources; (A) Identify valued scenic resources in the coastal zone management area; (B) Insure that new developments are compatible with their visual environment by designing and locating such developments to minimize the al,:eration of natural landforms and existing public views to and along the shoreline; (C) Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources; and (D) Encourage those developments which are not coastal dependent to locate in inland areas. (4) Coastal ecosystems; (A) Improve the technical basis for natural resource management; (B) Preserve valuable coastal ecosystems of significant biological or economic importance; (C) Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; and (D) Promote water quantity and quality planning and management practices which reflect the tolerance of fresh water and marine ecosystems anc .i prohibit land and water uses which violate state water quality standards. (5) Economic uses; (A) Concentrate in appropriate areas the location of coastal depen- dent development necessary to the State's economy; (B) Insure that coastal dependent development such as harbors and ports, visitor industry facilities, and energy generating facilities are located, designed, and constructed to minimize adverse social, visual, and environmental impacts in the coastal zone management area; and (C) Direct the location and expansion of coastal dependent develop- ments to areas presently desipated and used for such develop- ments and permit reasonable long-term growth at such areas, and permit coastal dependent development outside of presently designated arims when: (i) Utilization of presently designated locations is not feasible; (ii) Adverse environmental effects arc minimized; and (iii) Important to the State's economy. (6) Coastal hazards; (A) Develop and communicate adequate information on storm wave, tsunarni, flood, erosion, and subsidence hazard; (B) Control development in areas subject to storm wave, tsunami, flood, erosion, and subsidence hazard; 39 205A-2 PLANNING AND ECONOMIC DEVELOPMENT (C) Ensure that developments comply with requirements of the Federal Flood Insurance Program; and (D) Prevent coastal flooding from inland projects. (7) Managing development; (A) Effectively utilize and implement existing law to the maximum extent possible in managing present and future coastal zone development; (B) Facilitate timely processing of application for development permits and resolve overlapping or conflicting permit require- ments; and (C) Communicate the potential short and long-term impacts of proposed significant coastal developments early in their life- cycle and in terms understandable to the general public to facilitate public participation. in the planning and review process. (L 1977, c 188, pt of �3] �205A-3 Lead agency. The lead agency shall: (1) Receive, disburse, use, expend, and account for all funds that are made available by the United States and the State for the coastal zone management program; (2) Provide support and assistance in the administration of the coastal zone management program; (3) Review federal programs, permits, licenses and development propos- als for consistency with the coastal zone management program; (4) In consultation with the counties and the general public prepare guidelines as necessary to further specify and clarify the objectives and policies of the chapter to be submitted twenty days prior to the convening of any regular session of the legislature for review, modification, or enactment by the legislature; (5) Conduct a continuing review of the administration of the coastal zone management program and of the compliance of state and county agencies; (6) Facilitate public participation in the coastal zone management program; (7) Review state programs within the coastal zone management area from the shoreline to the seaward limit of the State's jurisdiction for consistency with the coastal zone management program; and (8) Prepare an annual report to the governor and the legislature which shall include recommendations for enactment of any legislation necessary to require any agency to comply with the objectives and policies of this chapter and any guidelines enacted by the legislature. [L 1977, c 188, pt of �3; am L 1979, c 200, �2] �205A4 Implementation of objectives, policies, and gaidelines. (a) In implementing the objectives of the coastal zone management program full consideration shall be given to ecological, cultural, historic, and esthetic values as well as to needs for economic development. (b) The objectives and policies of this chapter and any guidelines enacted by the legislature shall be binding upon actions within the coastal zone management area by all agencies. [L 1977, c 188, pt of �3; am L 1979, c 200, �3] �205A.5 Compliance. All agencies shall amend their regulations, as 40 COASTAL ZONE MANAGEMENT 205A-22 may be necessary, to comply with the objectives and policies of this chapter and any guidelines enacted by the 'legislature. [L 1977, c 188, pt of �3; am L 1979, c 200, �41 �205A-6 Cause Of 80i0n. (a) Subject to chapters 661 and 662, any person or agency may comrnence a civil action alleging that any agency: (1) Is not in compliance with one or more of the objectives, policies, and guidelines provided or authorized by this chapter within the special management area and the waters from the shoreline to the seaward limit of the State's jurisdiction; or (2) Has failed to perform any act or duty required to be performed under this chapter; or (3) In exercising any duty required to be performed under this chapter, has not complied -with the provisions of this chapter. (b) In any action brought under this section, the lead agency, if not a party, may intervene as a matter of right. (c) A court, in any action brought under this section, shall have jurisdiction to provide any relief as may be appropriate, including a temporary restraining order or preliminary injunction. (d) Any action brought under this section shall be commenced within sixty days -of,,the act which is the basis of the action. (e) Nothing in this seciion shall restrict any right that any person may have to assert any other claimor bring any other action. [L 1977, c 188, pt of �3; am L 1979, c 200, �5] PART 11. SPECIAL MANAGEMENT AREAS �205A-21 Findings and purposes. The legislature finds that, special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options, and to ensure that adequate access, by dedication or other means, to public owned or used beaches, recreation areas, and natural reserves is provided. The legislature finds and decl.Lres that it is the state policy to preserve, protect, and where possible, to restme the natural resources of the coastal zone of Hawaii. [L 1975, c 176, pt of �1; am L 1977, c 188, �5] �205A-22 Definitions. As used in this part, unless the context otherwise requires: (1) "Applicant" means any individual, organization, partnership, or corporation, including any utility, and any agency of government. (2) "Authority" means the county planning commission, except in counties where the county planning commission is advisory only, in which case "authority" means the county council or such body as the @ouncil may by ordinance designate. The authority may, as appropri- ate, delegate the responsibility for administering this part. (3) "Development" means any of the uses, activities, or operations on land; in or under water, within the special management area that are included below, but not those uses, activities, or operations excluded in subparagraph (13): (A) "Developmen:@" includes the following: 41 IIIA,11 PLANNING AND ECONOMIC DEVELOPMENT (i) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (ii) Grading, removing, dredging, mining, or extraction of any materials; (iii) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (iv) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (v) Construction, reconstruction, demolition, or alteration of the size of any structure. (B) "Development" does not include the following: (i) Construction of a single-family residence that is not part of a larger development; (ii) Repair or maintenance of roads and highways within existing rights-of-way; (iii) Routine maintenance dredging of existing streams, chan- nels, and drainage ways; (iv) The repair and maintenance of underground utility fines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; (v) Zoning variances, except for height, density, parking, and shoreline setback; (vi) Repair, maintenance, or interior alterations to existing structures; (Vil) Demolition or removal of structures, except those struc- tures located on any historic site as designated in national or state registers; (viii) The use of any land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes subject to review by the authority in accordance with subparagraph (C); (ix) The transfer of title to land; (x) The creation or termination of easements, covenants, or other rights in structures or land; (xi) The subdivision of land into lots greater than twenty acres in size; (xii) The subdivision of a parcel of land into four or fewer parcels when no associated construction activities are proposed, provided that any such land which is so subdi- vided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels; (xiii) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors; (xiv) Structural and nonstructural improvements to existing single-family residences including additional dwelling unit, where otherwise permissible; and 42 COASTAL ZONE NIANAGEMEN7r 205A-23 (xv) Nonstructural improvements to existing commercial struc- tures. (C) Whenever the authority finds that any use, activity, or operation excluded in subparagraph (B) is or may become part of a larger project, the cumulative impact of which may have a significant environmental or ecological effect on the special management area, that use, activity, or operation shall be defined as "development" for the purpose of this part. (4) "Special management area" means the land extending inland from the shoreline as delineated on the maps filed with the authority as of June 8, 1977, or as amended pursuant to section 205A-23. (5) "Special management area emergency permit" means an action by the authority authorizing development in cases of emergency requir- ing immediate action to prevent substantial physical harm to persons or property or to allow the reconstruction of structures damaged by natural hazards to their original form, provided that such structures were previously found to be in compliance with requirements of the Federal Flood Insurance Program. (6) "Special management area minor permit" means an action by the authority authorizing development, the valuation of which is not in excess of $65,000 and which has no substantial adverse environmen- tal or ecological effect, taking into account potential cumulative effects. (7) "Special management area use. permit" means an action by the authority authorizing development, the valuation of which exceeds S65,000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects. (8) "Structure" includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line. (9) "Valuation" shall be determined by the authority and means the estimated cost to replace the structure in kind, based on current replacement costs, or in the cases of other development, as defined above, the fair market value of the development. [L 1975, c 176, pt of �1; am L 1977, c 188, �6; am L 1979, c 200, �7; am L 1982, c 126, �1; am L 1983, c 124, �8; am L 1984, c 113, �1] AtIorney General Opinions "Special management area" must tw shoreline or costal water related land. Att. Gen. Op. 7 5-18. Case Notes "Development" includes that which is planned. 4 H. App. 304, 666 P.2d 177. �205,A-23 County special management area boundaries. (a) The special management area in each courity shall be as shown on such maps filed with the authority as of June 8, 1977. (b) On or before December 31, 1979, the authority shall review and pursuant to chapter 91, amend as necessary its special management area boundaries, to further the objectives and policies of this chapter, provided that any contraction of the special management area boundaries as provided for in subsection (a), shall be subject to lead agency review and determination as to 43 205A-23 PLANNING AND ECONOMIC DEVELOPMENT compliance with the objectives and policies of this chapter and any guidelines enacted by the legislature. Copies of the existing and amended maps shall be filed with the authority and the lead agency. (c) Nothing in this chapter shall preclude the authority from amending its st)ecial management area boundary at any point in time; provided that the procedures and requirements outlined in subsection (b) shall be complied with and provided further that any future special management area boundary adjustments shall be restricted to the coastal zone management area. [L 1975, c 176, pt of �1; am L 1977, c 188, �7; am L 1979, c 200, �8] Attorney General Opinions Counties must reasonably determine whether lands, located in excess of 100 yards from water to be protected, are lands the uses of which will have significant impact on the water. Att. Gen. Op. 75- 18. ��205A.24, 25 REPEALED. L 1977, c 188, ��8, 9. �205A-26 Special management area guidelines. In implementing this part, the authority shall adopt the following guidelines for the review of developments proposed in the special management area: (1) All development in the special management area shall be subject to reasonable terms and conditions set by the authority in order to ensure: (A) Adequate access, by dedication or other means, to publicly owned or used beaches, recreation areas, and natural reserves is provided to the extent consistent with sound conservation principles; (B) Adequate and properly located public recreation areas and wildlife preserves are reserved; (C) Provisions are made for solid and liquid waste treatment, disposition, and management which will minimize adverse effects upon special management area resources; and (D) Alterations to existing land forms and vegetation, except crops, and construction of structures shall cause minimum adverse, effect to water resources and scenic and recreational amenities and minimum danger of floods, landslides, erosion, siltation, or failure in the event of earthquake. (2) No development shall be approved unless the authority has first found: (A) That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options; (B) That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and (C) That the development is consistent with the county general plan and zoning. Such a finding of consistency does not preclude 44 COA STAL ZONE INIANAGENMNT 205A-29 concurrent processing where a general plan or zoning amend- ment may also be required. (3) The authority shall seek to minimize, where reasonable: (A) Dredging, filling or otherwise altering any bay, estuary, salt marsh, river mouth, slough or lagoon; (B) Any development which would reduce the size of any beach or other area u!;able for public recreation; (C) Any development which would reduce or impose restrictions upon public access to tidal and submerged lands, beaches, portions of rivers and streams within the special management areas and the mean high tide line where there is no beach; (D) Any development which would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast; and (E) Any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential or eXiSting agricultural uses of land. [L 1975, c 176, pt of �1; am L 1977, c 188, �10; am L 1979, c 200, �9; am L 1984, c 113, �2] Case Notes Grant of permit overturned because findings required by paragraph (2) not made. 65 H. 506, 654 P.2d 874. �205A-27 Designation of special management area authority. The authority is designated the special management area authority and is authorized to carry out the objectives, policies and procedures of this part. [L 1975, c 176, pt of �1; am L 1979, c 200, �10] allowed in any county within the special management area without obtaining a �205A-28 Permit required for development. No development shall be permit in accordance with this part. [L, 1975, c 176, pt of �1; am L 1979, c 200, �205A-29 Special management area use permit procedure. (a) The authority in each county, upon consultation with the central coordinating agency, shall establish and may amend pursuant to chapter 91, by rule or regulation the special management area use permit application procedures, conditions under which hearings must be held, and the time periods within which the hearing and action for special management area use permits shall occur. The authority shaU provide for adequate notice to individuals whose property rights may be adveriely affected and to persons who have requested in writing to be notified of special management area use permit hearings or applications. The authority shall also provide written public notice once in a newspaper of general circulation in the State at least twenty days in advance of the hearing. The authority may require a reasonable filing fee which shall be used for the purposes set forth herein. Any rule or regulation adopted by the authority shall be consistent with the objectives, policies, and special management area guidelines provided in this chapter. Action on the special management permit shall be final unless otherwise mandated by court order. 45 205A-29 PLANNING AND ECONOMIC DEVELOPMENr (b) No agency authorized to issue permits pertaining to any development within the special management area shall authorize any development unless approval is first received in accordance with the procedures adopted pursuant to this part. For the purposes of this subsection, county general plan, state land use district boundary amendments, and zoning changes are not permits. [L 1975, c 176, pt of �1; am L 1977, c 188, �11; am L 1979, c 200, �12) Case Notes Section does not require that notice of a meeting rescheduled for later date to be provided within time limit on original notice. 64 H. 431, 643 P.2d 55. �205A-30 Emergency and minor permits. Each county authority shall provide specific procedures consistent with this part for the issuance of special management area emergency permits or special management area minor permits, pursuant to the procedural requirements within this part, and judicial review from the grant and denial thereof. [L 1975, c 176, pt of �1; am L 1979, c 200, �13] �205A-31 REPEALED. L 1979, c 200, �14. [�205A-32] Penalties. (a) Any person who violates any provision of this part shall be subject to a civil fine not to exceed S10,000. (b) In addition to any other penalties, any person who performs any development in violation of this part shall be subject to a civil fine not to exceed $500 a day for each day in which such violation persists. [L 1975, c 176, pt of � I] �205A-33 Injunctions. Any person or agency violating any provision of this chapter may be enjoined by the circuit court of the State by mandatory or restraining order necessary or proper to effectuate the purposes of this chapter in a suit brought by the authority or the lead agency. [L 1979, c 200, �15; am L 1983, c 76, �1] CHAPTER 206 OAHU LAND DEVELOPMENT SECTION 206.1 DEFINITION'S 206.2 ADMINISTRATION OF CHAPTER 206-3 INTERESTED MEMBERS, OFFICERS OR EMPLOYEES 206.4 GENERAL POWERS 206-5 DECLARATION OF DEVELOPMENT AREAS 206-6 AcquISITION OF LAND WITHIN A DEVFL . ENT AREA 200 PROPERTY WHICH SHALL NOT BE A ED FOR DEVELOPMENT PROJECTS 206-8 DEVELOPMENT OF LANDS ACQUIR 206*9 DISPOSITION OF LANDS 206-10 'RESTRICTIONS ON SALE AN USE OF RESIDENTIAL LOTS BY PURCHASER 206-11 BREACH, MORTGAGING FFECT OF BREACH, ETC. M fF,_ .12 REQUIREM .V-T 206 , r To OP 206-13 POWER TO LEA PLEDGE, OR MORTGAGE 206-14 COOPERATI AGREEMENTS WITH OTHER GOVERNMENT AGENCIES 206.15 HEARIN' , WITNESSES, ETC. 206-16 INV MEN-r OF RESERVES 206-17 DITIONAL POWERS 206- SECURITY FOR FUNDS DEPOSITED BY BOARD 19 EmiNF--,-r DOMAIN 46 PLANNING AND ECONOMIC DEVELOPMENT CHAPTER 205A COASTAL ZONE MANAGEMENT SECTION PART 1. COASTAL ZONE MANAGEMENT 205A-1 DEFINITIONS PART 111. SHORELINE SETBACKS 205A-41 DEFINITIONS 205A42 DETERMINATION OF THE SHORELINE 205A43 ESTABLISHMENT OF SHORELINE SETBACKS AND DUTIES AND POWERS OF THE DEPARTMENT 20SA-44 PROHIBITIONS 205A45 SHORELINE SETBACK LINES ESTABLISHED BY COUNTY 205A46 FUNCTIONS OF DEPARTMENT 205A-47 EXEMPTIONS 205A-48 CONFLICT OF OTHER LAVVS 205A49 ADOPTION OF RULES Cross References Housine finance development corporation compliance with environmental and shoreline protection laws, see note at end of chapter 201E. PART 1. COASTAL ZONE MANAGEMENT V05A-I Definitions. As used in this chapter, unless the context otherwise requires: "Lead agency" means the office of state planning; "Shoreline" means the upper reaches of the wash of the waves, other than storm and tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. [am L 1986, c 258, �2; am L 1987, c 336, �7; am L 1988, c 352, �4] Revision Note Only the definitions amended are compiled in this Supplement. �205A-6 Cause of action. Case Notes Judicial intervention under this section should not precede resolution of issues by administrative agency. 69 H. (No. 11228), 734 P.2d 161. PART 11. SPECIAL MANAGEMENT AREAS �205A-26 * Special management area guidelines. Can Notes Grant of pemit overturned because findings required by paragraph (2) not made. 68 H. (Nos. 10078, 10079). Not violated where requisite findings were contained in committee report recommending approval of development. 6 H. App. (No. 11313), 735 P.2d 950. 86 COASTAL ZONE MANAGEMENT 205A-44 FIART Ill. SHORELINE SETBACKS �205A-41 Definitions. As used in this part, unless the context otherwise requires: "Authority" means the authority as defined in part 11. "Department" means the planning department of each county. "Shoreline area" means all of the land area between the shoreline and the shoreline setback line. "Shoreline setback line" means that line established in this part or by the county running inland from and parallel to the shoreline at a horizontal plane. [L 1986, c 258, pt of � I I I �205A-42 Determination of the shoreline. The board of land and natural resources shall adopt niles pursuant to chapter 91 prescribing procedures for de- terminin2 a shoreline Eind appeals of shoreline determinations; provided that no determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by man-made structures which have been ap- proved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure. (L 1986. c 258, pt of � I) �205A-43 Establishment of shoreline setbacks and duties and powers of the department. Setbacks along shorelines are established of not less than twenty feet and not more than forty feet inland from the shoreline. The department shall adopt rules within a period of one year after June 22, 1970, pursuant to chapter 91, and shall enforce tile shoreline setbacks and rules pertaining thereto. [L 1986, c 258, pt of �11 �205A-44 Prohibitions. (a) The mining or taking of sand, dead coral or coral rubble, rocks. soil, or other beach or marine deposits from the shoreline area is prohibited with the 15ollowing exceptions: (1) The taking from the shoreline area of such materials, not in excess of one gallon per person per day, for reasonable, personal, noncommercial use, provided that stricter provisions may be established by the counties; (2) Where the mining or taking of sand by the State or county is for the replenishment of sand in the shoreline area, provided that for the purpose of this paragraph an environmental assessment for the proposed project shall be prepared pursuant to chapter 343, a finding shall be made by the proposing state or county agency that the proposed project is in the public interest and will not have any adverse significant social, economic, or environmental impact, and both a public informational meeting and public hearing shall be held by the proposing state or county agency in the affected community. The public hearing shall be preceded by public notice of the proposed project not less than thirty days before the hearing and published on three separate days in a newspaper of general circulation in the State or county affected by the proposed project. The proposing state or county agency shall also notify in writing the owners or lessees of adjoining, overlapping, or affected property of the proposed project; (3) The clearing of sand from existing drainage pipes and canals and from the mouths of streams; or (4) The cleaning of shoreline area for State or county maintenance purposes, including the purposes under section 46-11.5 and section 46-12; provided 87 205A-44 PLANNING AND ECONIOMIC DEVELOPMENT that the sand removed shall be placed on adjacent areas unless such placement would result in significant turbidity. (b) Except as otherwise provided in this pan no structure or any portion thereof, including but not limited to seawalls, groins, and revetments, shall be permitted within the shoreline area; provided that any lawful nonconforming struc- ture existing on June 22, 1970, shall be permitted; provided further that any structure which is necessary for safety reasons or to protect the property from erosion or wave damages shall be permitted. A structure not conforming to this section but for which a building permit application has been filed on or before June 22, 1970, shall also be permitted as a nonconforming structure, subject to the ordinances and regulations of the particular county. (c) Any nonconforming structure, including but not limited to residential dwellings, agricultural structures, seawalls, groins, and revetments may be replaced or reconstructed within the shoreline area; provided that no nonconforming structure shall be substantially enlarged or changed to another nonconforming use within the shoreline area. If the use of any nonconforming structure is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited. [L 1986, c 258, pt of �1; am L 1988, c 375, �1] Cross References Mining or taking of sand, etc., see �171-58.5. �205A-45 Shoreline setback lines established by county. The several counties through ordinances may require that shoreline setback lines be established at a distance greater than that established in this part. [L 1986, c 258, pt of � I I �205A-46 Functions of department. (a) The department shall administer the provisions of this part. It shall review the plans of all applicants who propose any structure, activity, or facility which otherwise would be prohibited by this part. The department may require that the plans be supplemented by accurately mapped data showing natural conditions and topography relating to all existing and proposed structures, buddings, and facilities. The department may also require reasonable changes in the submitted plans in order to obtain optimum compliance practicable with this part. (b) After reviewing the plans, the department shall transmit the plans with its recommendations to the authority. The authority shall grant a variance for such structure, activity, or facility if, after a hearing pursuant to chapter 91, it finds in writing, based on the record presented either: (1) that such structure, activity, or facility is in the public interest; or (2) that hardship will be caused to the applicant if the proposed structure, activity, or facility is not allowed on that portion of the land within the shoreline area. Any variance granted to the maximum extent prac- ticable shall be subject to such conditions as will cause the structure, activity, or facility to result in a minimum interference with natural shoreline processes and as will provide for safe public shoreline access. The authority shall render written approval or disapproval within forty-five days after the hearing on the applicant's plans, unless such period is extended by written agreement between the authority and the applicant. [L 1986, c 258, pt of �1] Note For variances and pern-its granted before May 29, 1986. see L 1986, c 258, �5. COMMUNITY DEVELOPMENT AUTHORITY 206E-3 �205A.47 Exemptions. Tunnels. canals, basins, and ditches, together with associated structures used by public utilities as the term is defined in section 269- 1, wharves, docks, piers, and other harbor and waterfront improvements and any other maritime facility and watersport recreational facilities may be permitted within the shoreline area, provided that the plans are submitted for review and are approved by the authority after a public hcaring has been held and that the appropriate state body has found that the proposed structures will result only in a minimum inter- ference with natural shoreline processes; provided further that any such structure constructed by a governmental body shall be exempt from the provisions of this part except as to the requirement that two public hearings shall be held by the governmental body charged with such construction, once when the project is first conceived and again when the project is substantially designed and planned, but prior to the letting of the contracit. Repair, strengthening, reinforcement, and main- tenance of fishponds. and improvements for aquaculture farms shall be exempt from this part, upon issuance of a permit or waiver of the requirements by the board of land and natural resources. [L 1986, c 258, pt of � I I �205A-48 Conflict of other laws. In case of a conflict between the re- quirements of any other state law or county ordinance regarding shoreline setback lines. the more restrictive requirements shall apply in furlhering the purposes of this part. Nothing contained in this part shall be construed to diminish the jurisdiction of the state department of transportation over wharves, airports, docks, piers, small boat, or other harbors, and any other maritime or water sports recreational facilities to be constructed on state land by the State; provided that such plans are submitted for the review and information of the officer of the respective agency charged with the administration of the count), zoning laws, and found not to conflict with any county ordinances, zoning laws, and building code. [L 1986, c 258, pt of �11 �205A-49 Adoption of rules. Each agency charged with carrying out this pan shall adopt rules under chapter 91, as necessary, to implement or comply with this part by June 30, 1987. [L '1986, c 258, pt of �1] CHAPTER 206E HAWAII COMMUNITY DEVELOPMENT AUTHORI PART 1. GENERAL PROVISIONS SECTION 206E-3 HAWAII COMMUNITY DEVELOPMENT AUTHORITY; ESTABLISH R'TY* ETA 206E-5 DESIGNATION OF COMMUNITY DEVELOPMENT DISTRICT MUNITY DEVELOPMENT PLANS 206E-6 DiSTRICT-NkIDE IMPROVEMENT PROGRAM 206E-15 RESIDENTIAL PROJECTS; COOPERATIVE AGR ENTS PART 11. KAKAAKO COMMUNITY DE OPMENT DISTRICT 206E-32 DISTRICT; ESTABLISHED, BOU ARIES PART IV. REVENUE B S FOR PUBLIC FACILITY PROJECTS 206E-153 REVENUE SON , AUTHORIZATION PART 1. GENERAL PROVISIONS 06E.3 Hawaii comrnunity development authority; established. (a) ere is established the Hawaii, community development authority, which shall be PART IV' REVENUE B L H T A y 'PmE P N T D R V 2 L 0 0 6 P E MINT AUTHORI R A 'T 'TY ESTABLISH 14 DISTRICTS. 'mUNIT1 DIV 'LOPIENT HO ITY DEVELOP ET @NT P'OGR PERA Ti%E AGR ENTS 'TY op. 'T "T E ME D R'cT OU A E, sF @E IiI3 REVENUE N AuTHO' PART I 06E.3 Hawaii comrr ere sestablished the Hawaii 89 1902 HOUSE OF REPRESENTATIVES H.B. NO, H.D. I FIFTEENTH LEGISLATURE, 1989 S.D. I. STATE OF HAWAII C.D. I A BILL FOR AN ACT RELATING TO COASTAL ZONE MANAGEMENT. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: 1 SECTION 1. Chapter 205A, Hawaii Revised Statutes, is amended 2 by adding two new sections to be appropriatelv designated and to 3 read as follows: 4 "S205A- Powers and duties of the authority. (a) Prior to 5 action on a variance application, the authority shall hold a 6 public hearina under chapter 91. Bv adoption of rules under 7 chapter9l, the authorty mav delecate responsibilitv to the 8 department. Public and privae notice, including reasonable 9 notice to abutting propertv owners and persons who have requested 10this notice, shall be provided, but a public hearing mav be 11waived prior to action on a variance application for: 12 Stabilization of shoreline erosion bv the moving of sand 13 entirelv on public lands; 14 (2) Protection of a lecal structure costing more than 15 $20,000; pvrovided the structure is at risk of immediate 16 damaae from shoreline erosion; 17 (3) Other structures or activities; provided that no person 18 or agency has recquested a public hearing within twenty- 19' five calendar days after public notice of the 20 application; or HB1902 CDl Page 2 1902 H.B. NO. H.D. I S.D. C.D. 1 1 (4) Maintenance, repair, reconstruction and minor 2 additions or aLterations of legal boating, maritime, or 3 watersports recreational facilities, which result in 4 little or no interference with natural shoreline 5 processes. 6 (b) The authoritv shall either act on variance applications 7 or, bv adoption of rules under chapter 91, deleate the responsibilitv to the department. 9 S205A- Enforcement of shoreline setbacks. (a) The 10department or an agency designated by department rules shall Ilenforce this part and ruLes adopted pursuant to this part. Anv l2structure or activity prohibited by sectio- 205A-44, that has not l3received a variance pursuant- to this part or comviied wash 14conditions or. a variance, shall be removed or corrected. No 15other State or county permit or approval shall be construed as a l6variance pursuant to this part. 17 (b) Where the shoreline is affected bv a man made structure 18that has not been authorized with government acencv permits l9recruired by law, if anv part of the structure is on private 20 property, then for purposes of enforcement of this part, the 2structure shall be construed to be entirelv within the shoreline 22area. 23 (c) The authority of the board-of land and natural 24resources to determine the shoreline and enforce rules 25established under section 183-41 shall not be diminished by a HB1902 CD1 Page 3 1902 H.B, NO H.D I S. D. I 1man-made structure in vioclation of this part." 2 SECTION 2. Section 205A-41, Hawaii Revised Statutes, is 3 amended by adding two new definitions to be appropriately 4 inserted and to read as follows: 5 ""Board approval " means apporoval bv the board -of land and 6 natural resources Dursuant to section 183-41. 7 "Structure" includes, but is not liMited to, any portion of 8 anv building, pavement, road, pipe, flume, utility line, fence, 9 groin, wall, or revetment. " 10 SECTION 3. Section 171-58.5, Hawaii Revised Statutes, is 11amended to read as follows: 12 ",[]�171-58.5[]] Prohibitions. The mining or taking of 13 sand, dead coral or coral rubble, rocks, soil, or other marine 14deposits seaward from the shoreline is' prohibited with the 15following exceptions: 16 (1) The taking from seaward of the shoreline of such 17 materials, not in excess of one callon per person per 18 day for reasonable, personal, noncommercial use; 19 (2) For the replenishment or protection of public shoreline 20 areas and adjacent public lands seaward of the shoreline 21 [area), or construction or maintenance of State approved 22 lagoons, harbors, launching ramps or navigational 23 channels with a permit authorized under section 183-41[, HB1902 CD1 Page 4 KBI NO, H'I"Do ' I S-D I C.D. 1 1 provided that si;ch permit shall not be issued for 2 Hakipulu sandbar, which is offshore of Molii fishpond, 3 Oahu); 4 (3) The clearing of such materials from existing drainage pipes and canals and from the mouths of streams(;) 6 includina clearing for the purposes under section 7 46-11.5; vrovided that the sand removed shall be olaced 8 on adjacent are-as unless this placement would result in 9 sianificant turbidity, or 10 (4) The cleaning of areas seaward of the shoreline for 11 state or county maintenance purposes including the 12 purposes under [section 46-11.5 and] section 46-12; 13 provided that the [materials) sand removed shall be 14 placed on adjacent areas unless such placement would 15 result in significant turbidity." 16 SECTION 4. Section 205A-1, Hawaii Revised Statutes, is 17 amended bv a-mending the def initions of "coastal zone management 18area" and "shoreline" to read as follows: 19 ""Coastal zone management area" means [the special management 20area after compliance pursuant to section 205A-2---, and] the 21waters from the shoreline to the seaward limit of the State's 22jurisdiction and [any other area which the lead agency may 23designate for the purpose of administering the coastal zone HB1902 CDI Page 5 1902 H.B, NO, P1. D. 1 S.D@ I 1 management program;) all. land areas excludinc those lands C.D.1 2desianated as state forest reserves; 3 "Shoreline" means the upper reaches of the wash of the waves, 4 other than storm and [tidal) seismic waves, at high tide during 5 the season of the year in which the hichest wash of the waves 6 occurs, usually evidenced by the edge of vegetation growth, or 7 the upper limit of debris left by the wash of -he waves." 8 SECTION 5. Section 205A-3, Hawaii Revised Statutes, is 9amended to read as follows: 10 "520SA-3 Lead agency. The lead agency s.hall: 11 (1) Receive, disburse, use, expend, and account for all 12 funds that are made available by the United States and 13 the State for the coastal zone management program; 14 (2) Provide support and assistance in th.e administration of 15 the coastal zone management program; 16 (3) Review federal programs, permits, licenses.L. and 17 development proposals for consistency with the coastal 18 zone management program; 19 (4) In consultation with the counties and the general public 20 prepare guidelines as necessary to further specify and 21 clarify the objectives and policies of the chapter to be 22 submitted twenty days prior to the convening of any 23 regular session of the legislature for review, 24 modification, or enactment by the legislature; HB1902 CD1 Page 6 1902 H.B, NO, H.D. I I S.D I C. D. 1 1 (5) Conduct a continuing review of the administration of --he 2 coastal zone management program and of the compliance of 3 state and county agencies(;] with the objectives and 4 policies of this chapter; 5 (6) Facilitate public participation in the coastal zone 6 management program; and 7 ((7) Review state programs within the coastal zone management 8 area from the shoreline to the seaward limit of the 9 State's jurisdiction for consistency with the coastal 10 zone managemen"C proa-ram; and 11 (8)] (7) Prepare an annual report to the governor and the 12 legislature which shall include recommendations for 13 enactmenz: of any legislation necessary to require any 14 agency to compl, with the objectives and olicies of 15 this chapter and any guidelines enacted by the 16 legislature." 17 SECTION 6. Section :20BA-4, Hawaii Revised Statutes, is 18 amended to read as follo,,;s: 19 11520BA-4 Implementation of objectives, policies, and 20 guidelines. (a) In implementing the objectives of the coastal 21zone management program,.the agencies shall give full 22consideration [shall be given) to ecological, cultural, historic, 23[and) esthetic, recreational, scenic, and open spa-ce values, and 24coastal hazards, as well as to needs for economic development. RB1902 CD1 Page 7 H.B, NO, H.Dl S.D 1 C.D, 1 1 (b) The objectives and policies of this chapter and any 2 guidelnies enacted by the legislature shall be binding upon 3 actions within the coastal zone management area by all 4 agencies[.), within the scope of their authority." 5 SECTION 7. Section 205A-5, Hawaii Revised Statutes, is 6 amended to read as follows: 7 "�20.5A-5 Compliance. All agencies shall amend) ensure that 8 their [regulations, as may be necessary, to) rules comply with 9 the objectives and policies of this chapter and any guidelines 10 enacted by the legislature. " 11 SECTION 8. Section 205A-29, Hawaii Revised Statutes, is 12 amended to read as follows: 13 "�205A-29 Special management area use permit procedure. (a) 14 The authority in each county, upon consultation with the central 15coordinating agency, shall [establish and may amend pursuant to 16 chapter 91, by rule or regulation', adopt rules under chapter 91 17setting the special management area use permlt- application 18 procedures, conditions under which hearings must be held, and the 19 time periods within which the hearing and action for special 20management area use permits shall occur. The authority shall 21 p rovide for adequate notice to individuals whose property rights 22may be adversely affected and to persons who have requested in 23writing to be notified of special management area use permit 24hearings or applications. The authority shall also provide HB1902 CDI Page 8 H.B, NO, 1_9? S.D. I C.D. I I written public notice once in a newspaper of general 2 in the State a'L- least 'Cwentv davs in advance of the hearina. The 3 authority may require a reasonable filing fee which shall be used 4for the purposes set forth herein. 5 Any rule (or regulation! adopted by the au=hority shall be 6consistent with the objectives, policies, and special management 7 area guidelines providedin this chapter. Action on the special 8management permit shall be final unless otherwise mandated by 9 court order. 10 (b) No agency auth,or--zed to issue permits pertaining to any 11development. within the special management area shall authorize 12any development unless approval is first received in accordance 13w-'A.th the procedures adopted pursuant to this part. For the 14,ourposes of this subsection, county general plan, state land use 15district boundary amendments, and zoning changes are not 16 pe rm i t s . " 1 17 SECTION 9. Section 205A-32, Hawail Revised Statutes, is 18amended to read as follows: 19 "[[]5205A-32(]] Penalties. (a) Any person who violates 20any provision of [this] part :1 or part III shall be [subject to) 21liable for a civil fine not to exceed $10,000. 22 (b) In addition to any other penalties, any person who 23[performs any development in violation of this part] is violating 24any provision of part I: or part III shall be [subject to] liable HB1902 CD1 Page 9 H, B, NO, 1902, I H.D.1 S.D. 1 C.D. I 1for a civil fine not to exceed [$500) $1,000 a day for each day 2 in which such viol,ation persists. 3 (c) Anv civiL fine provided under this section may be 4imposed by the circuit court or may be imposed by the department 5after an opportunity for a hearing under chapter 91. imposition 6of a civil fine shall not be a Prereauisite to any civil fine or 7 other injunctive relief ordered by the circuit court." 8 SECTION 10. Section 205A-41, Hawaii Revised Statutes, is 9amended by amending the definition of "shoreline area" to read: 10 "'Shoreline area" [means] shall include all of the land area 11 between the shoreline and the shoreline setback line[.) and may 121nclude the area between mean sea level and the shoreline." 13 SECTION 11 .Section 205A-43, Hawaii Revised Statutes, is 14amended to read as follows: 15 5205A-4 3 Establishment of shoreline setbacks and duties 16 and powers of the department. (a) Setbacks along shorelines are 17established of not less than twenty feet and not more than forty 18feet inland from the shoreline. The department shall adopt rules 19 [within a period of one year after June 22, 1970,) pursuant to 20chapter 91, and shall enforce the shoreline setbacks and rules 21 pertaining thereto. 22 (b) The powers and duties of the department shall include, 23but not be limited to: HB1902 CD1 Poge 10 H,B- NO, 1902 H.D I S.D. I C.D. I I (I) The department shall adopot rules under chapter 91 2 prescribing procedures for deterMininc the shoreline 3 setbackline; and 4 (2 The department shall review the clans of all applicants 5 who propose anv structure, activitv, or facility that 6 would be prohibited without a variance pursuant to this 7 part. The department mav require that the plans be 8 supplemented by accuratlv manned data and photographs 9 showing natural conditions and topography relating to ures and actvities." 10 all existing and proposed struct 11 SECTION 12. Section 205A-44, Hawaii Revised Statutes, iS 12amended to read as follows: 13 "�205A-44 Prohibitions. (a) The minIng or taking of sand, 14 dead coral or coral rubble, rocks, soil, or other beach or marine 15deposits from the shoreline area is prohibited with the following 16 exceptions: 17 (1) The taking from the shoreline area of [such) the 18 materials, not in excess of one gallon per person per 19 day, for reasonable, personal, noncommercial use, 20 provided that stricter provisions may be established by 21 the counties; 22 (2) Where the mining or taking [of sand by the State or 23 county is for the replenishment of sand in the shoreline 24 area, provided that for the purpose of this paragraph an HB1902 CD1 Doge 1902 H,Bs NO, H.D. 1 S.D. I C.D. I 1 environmental assessment for the proposed project shall 2 be prepared pursuant to chapter 343, a finding shall be 3 made by the proposing state or county agency that tne 4 proposed project is in the public interest and will not 5 have any adverse significant social, economic or 6 environmental impact, and both a public informational 7 meeting and public hearing shall be held by the 8 proposing state or county agency in the affected 9 community. The public hearing shall be preceded by 10 public i@otice of the proposed project not less than 11 thirty days before the hearing and published on three 12 separate days in a newspaper of general circulation in 13 the State or county affected by the proposed project. 14 The proposing state or county agency shall also notify 15 in writing the owners or lessees of adjoining, 16 overlapping, or affected property of the proposed 17 project;] is authorized by a variance pursuant to this 18 part; 19 (3) The clearing of (sand) the materials from existing 20 drainage pipes and canals and from the mouths of 21 streamsl;] including clearing for the purposes under 22 section 46-11.5; provided that the sand removed shall be 23 placed on adlacent areas unless such-placement would 24 result i@i sianificant turbidity; or MB1902 CDJ Page 12 1902 H,B. NO, H.D. 1 S-D I C.D. 1 1 (4) The cleaning of the shoreline area for State or county 2 maintenance purposes, including the clearing for 3 purposes under (section 46-11.5 and) section 46-12; 4 prov ided that the sand removed shall be placed on 5 adjacent areas unless (such] the placement would result 6 in significant turbidity. 7 (b) [Except as otherwise provided in this part no structure 8 or any portion thereof, including but not limited to seawalls, 9 groins, and revetments, shall be permitted within the shoreline 10area; provided that any lawful nonconforming structure existing 11on June 22, 1970, shall be! permitted; provided further that any 12structure which is necesSELry for safety reasons or to protect the 13property from erosion or wave damages shall be permitted. A 14structure not conforming to this section but for which a building 15permit application has be(@n filed on or before June 22, 1970, 16shall' also be permitted as a nonconforming structure, subject to 17the ordinances and regulations of the particular county.) Except 18as provided in this section, structures are prohibited in the 19shoreline area without a variance Rursuant to this part. 20Structures in the shoreline area shall not need a variance if: 21 (1) They were completed prior to June 22, 1970; 22 (2) They received either a building-permit, board aRRroval, 23 or shoreline setback variance prior to the effective 24 date of this Act; RB1902 CD1 Page 13 1902 H,B, N0 H. D. I S. D. 1 C.D. 1 1 (3) They are outside the shoreline area when thev receive 2 either a building permit or board approval; 3 (4) They are necessary for or ancillary to continuation of 4 existing agtriculture or aquaculture in the shoreline 5 area on the effective date of this section; 6 (5) They are minor structures permitted under rules adopted 7 bv the department which do not affect beach processes or 8 artificially fix the shoreline and do not interfere with. 9 public access or public views to and along the 10 shoreline;_or 11 (6) Work being done consists of maintenance, repair, 12 reconstruction, and minor additions or alterations of 13 legal boating, maritime,-or watersports recreational 14 facilities, which are publicly owned, and which result 15 in little or no interference with natural shoreline 16 processes; 17 provided that permitted structures mav be repaired, but shall not 18 be enlarged within the shoreline area without a variance. 19 [(c) Any nonconforming structure, including but not limited 20to residential dwellings, agricultural structures, seawalls, 21groins, and revetments may be replaced or reconstructed within 22the shoreline area; provided that no nonconforming structure 23shall be substantally enlarged or changed to another 24nonconforming use within the shoreline area. If the use of any HB1902 CD1 Page 14 H.B, NO. H"D, 1 S.D. I I C.D. 1 1 nonconforming structure is discontinued or held in abeyance for a 2 period of one year, the f%irther continuation of such use shall be 3 prohibited. ] " 1 4 SECTION 13. Section 205A-45, Hawaii Revised Statutes, is 5 amended to read as follows: 6 "5205A-45 Shoreline setback lines established by county. 7 (a) The several counties through rules adopted pursuant to 8 chavter 91 or ordinance[s] may require that shoreline setback 9 lines be established at (a distance) distances greater than that 10established in this part. 11 (b) The several coun-:ies throuch rules adopted pursuant to 12chanter 91 or ordinance may expand the shoreline area to include 13 the area between mean sea level and the shoreline." 14 SECTION 14. Section 205A-46, Hawaii Revised Statutes, is 15amended to read as follows: 16 "5205A-46 [Functions of departmont. (a) The department 17 shall administer the provisions of this part. it shall review 18the plans of all applicants who propose any structure, activity, 19 or facility which otherwise would be prohibited by this part. 20 The department may require that the plant be supplemented by 21accurately mapped data showing natural conditions and topography 22 relating to all existing and proposed structures, buildings, and 23 facilities. RB1902 CDl Page 15 H,B, NO, H'9D"' 1 S.D. 1 C.D. 1 1 The departmett may also require reasonable changes in the 2 submitted plans in order to obtain optimum compliance practicable 3 with this part. 4 (b) After reviewing the plans, the department shall 5 transmit the plans with its recommendations to the authority. The 6 authority shall grant a variance for such structure, activity, or 7 faci lity if, after a hearing pursuant to chapter 91, it finds in 8 writing, based on the record presented either: (1) that such 9 structure, activity, or facility is in the public interest; or 10(2) that hardship will be caused to the applicant if the proposed 11structure, activity, or facility is not allowed on that portion 12of the land within the shoreline area. Any variance granted to 13the maximum extent practicable shall be sub@ect to such 14conditions as will cause the structure, activity, or facility to 15result in a minimum interference with natural shoreline processes 16and as will provide for safe public shoreline access. The 17authority shall render written approval or disapproval within 18forty-five days after the hearing on the applicant's plans, 19unless such period is extended by written agreement between the 20authority and the applicant.] Variances. (a) A variance may be 21granted for a strfucture or activity otherwise prohibited by this 22part if the autholrity finds in writing, based on the record 23presented, that t1he proposed structure or activity is necessary 24 for or ancillary to: RB1902 CD1 Page 16 1902 H.B. NO. H. D. I S-D I C.D. 1 1 _C@J_ Cultivation of crops; 2 (2) Aguaculture; 3 (3) Landscaping; provided that the authority finds that the 4 proposed structure or activity will not adversely afIfect beach processes and will not artificiallv fix 6 the shoreline; 7 (4) Drainage; 8 (5) Boating, maritime, or water sports recreational 9 facilities; 10 1,6) Facilities or improvements by public agencies or public 11 utilities regulated under section 269; 12 (7) Private facilities or improvements that are clearly in 13 the public interest; 14 (8) Private facilities or improvements which will neither 15 adversely affect beach processes nor artificially fix 16 the shoreline; provided that the authority also finds 17 that hardship will result to the applicant if the 18 facilities or _improvements are not allowed within the 19 shoreline area; 20 (9) Private facilities or imiDrovements that may 21 artificially fix the shoreline; provided that the 22 authority also finds that shoreline erosion is likely 23 to cause hardship to the applicant if the facilities or 24 improvements are not allowed within*the shoreline area; RB1902 CD1 Page 17 1902 H.B. NO, H. D. 1 S. D. 1 C.D. 1 1 provided further that the authoritv imposes conditions 2 to prOhibit any structure seaward of the existin 3 shoreline unless it is clearlv in the public interest 4 or 5 (10) Moving of sand from one location seaward of the 6 shoreline to another location seaward of the shoreline; 7 provided that the authority also finds that moving of 8 sand will not adversely affect beach processes, will 9 not diminish the size of a public beach, and will be 10 necessary to stabilize an eroding shoreline. 11 (b) Hardship shall be defined in rules adopted by the l2 authoritv under chanter 91. Hardship shall not be determined as 13a result of county zoning chances, planned development permits, l4cluster permits, or subdivision approvals after the effective 15dateof this Act,or as a result of any other permit or approval l6 listed in rules adopted by the authority. 17 (c) No variance shall be granted unless appropriate l8conditions are imposed: 19 (1) To maintain safe lateral access to and along the 20 shoreline or adequately compensate for its loss; 21 (2) To minimize risk of adverse impacts on beach processes; 22 (3) To minimize risk of structures failing and becoming 23 loose rocks or rubble on public property; and HB1902 CD1 Page 18 1902 H.B. NO, H. D. 1 S.D. I C.D. i (4) To minimize adverse imt)aCtson public views to, frcm, 2 and alona the shoreline." 3 SECTION 15. Section 205A-49, Hawaii Revised Statutes, is 4 amended to read as follows: 5 "5205A-49 Adoption of rules. Each agency charged with 6carrying out this part shall adopt rules [under chapter 91, as 7 necessary, to implement or comply with this part by June 30, 8 1987.) necessary to imolement or comply with this -part bV July I 91990. All rules shall be adopted under chapter 91." 10 SECTION 16. Section 205A-47, Hawaii Revised Statutes, is 11repealed. 12 ("520SA-47 Exemptions. Tunnels, canals, basins, and 13ditches, together with associated structures used by public 14utilities as the term is defined in section 269-1, wharves, 15docks, piers, and other harbor and waterfront improvements and Many other maritime facility and water sport recreational 17facilities may be permitted within the shoreline area; provided 18that the plans are submitted forreview and are approved by the 19authority after a public hearing has been held and that the 20appropriate state body has found that the proposed structures 21will result only in a minimum interference with natural shoreline 22processes; provided further that any such structure constructed 23by a governmental body shall be exempt from the provisions of 24this part except as to the requirement that two public hearings RB1902 CD1 P*oge 19 HB, NO, H,go, D, I S.D. I C.D. I 1shall be held by the governmental body charged with such 2construction, once when the project is first conceived and again 3 when the project is substantially designed and planned, but prior 4to the letting of the contract. Repair, strengthening, 5reinforcement, and maintenance of fishponds, and improverents for 6acruaculture farms shall be exempt from this part, upon issuance 7of a permit or waiver of the requirements by the board of land 8and natural resou ces."I 9 SECTION 17. This Act does not affect rights and duties that 10matured, penaltiesi that were incurred, and proceedIngs that were 11bea-un, before its effective date. 12 SECTION 18. Statutory material to be repealed is bracketed. 13New statutorv material is underscored. 14 SECT'ION'19. @This Act shall take effect upon its approval. HB1902 CDl APPENDIX C SHORELINE SETBACK RULES & REGULATIONS CITY AND COUNTY OF HONOLULU SHORELINE SETBACK RULES AND REGULATIONS OF THE CITY AND COUNTY OF 11014OLULU HONOLULU, HAWAII RULE 1. AUTHORITY Pursuant to the authority of Chapter 205, Hawaii Revised Statutes, as amended, and Ordinance No. 4631 of the City and County of Honolulu, the Rules and Regulations hereinafter contained are hereby established. They shall apply to all the shores within the City and County of Honolulu, State of Hawai i. RULE 2. PURPOSE Growing population aAd expanding development have brought about numerous cases of encroachment of structures upon the shore. Many of these structures have disturbed the natural processes and caused erosion of the shore. Concrete masses along the shore are contrary to the policy for the preservation of the natural shore and open space. Unrestricted removal of sand, coral, rocks, etc., for commercial uses can only deteriorate the shore and remove it from public use and enjoyment. Moreover, the Hawaiian Islands are subject to tsunamis and high waves which endanger residential dwellings and other structures which are built too close to the shoreline. For these reasons, it is in the public interest to establish shoreline setbacks and to regulate the use and activities within the shoreline setbacks. RULE 3. TITLE These Rules and Regulations may be referred to as the "SHORELINE SETBACK RULES AND REGULATIONS OF THE CITY AND COUNTY OF HONOLULU." RULE 4. METHODS WHEREBY PUBLIC MAY OBTAIN INFORMATION 4.1 Where Obtained The public may obtain information as to matters within !he jurisdiction of the City and County of Honolulu. by inquiring at: (a) The office of the City Clerk, City Hall, where there are on file all rules of the Agency: or (b) The office of the Department of Land Utilization, 'Llonolulu, 11awaii 96813. All rules. orders or opinions of the Agency are on file and available for public inspection at said office. Copies of compilations of rules and supplements thereto are available to the public at a price to be fixed by the Agency to cover mailing and publication costs. 4.2 Submittals or Requests for Information Such inquiry may be made in person at said offices during business hours, or by submitting a request for information in writing to the Director of Land Utilization, City and County of Honolulu, Hawaii- 96813. RULE 5. rETITION FOR ADOPTION. AMENDMENT, OR REPEAL OF RULES 5.1 Petition Any interested person may petition the Agency requesting the adoption, amendment. or repeal of any rule of the Agency. 5.2 Submission The petition shaill be submitted in ten (10) copies to the Director of Land Utilization, City and County of Honolulu. Honolulu, Hawaii 96813. It shall include: (a) A statement of the nature of the petitioner's interest. (b) A draft or the substance of the proposed rule or amend ment or a designation of the provision sought to be repealed. (c) An explicit statement of the reasons in support of the proposed rule. amendment. or repeal. 5.3 Disposi ion of Petition The Agency shall within thirty (30) days after the submission of the petition either deny the petition in writing. stating its reasons for such denial, or initiate proceedings in accordance with HRS, Sec. 91-3, for the adoption, amendment, or repeal of the rules, as the case may be. RULE 6. DECLAPATORY RULINGS BY AGENCY 6.1 Petition Any interested person may petition the Agency for a declaratory order as to the applicability of any statute or ordinance relating to the Agency. or of any rule or order of the Agency. 6.2 Submission of Petition The petition shall be submitted in duplicate to the Director of Land Utilization, City and County of 11onolulu. Honolulu, Hawaii 96813. (a) The name. address, and telephone number of the petitioner. (b) A statement of the nature of petitioner's interest. including reasons for the submission of the petition. (c) A designation of the specific provision. rule. or order:in question. (d) A complete statement of facts. (e) A statement of the position or contention of the petitioner. (f) A memorandum of authorities, containing a full discussion of the reasons, including any legal authorities, in support of such position or contention. 6.3 Reiection of Petition Any petition which does not conform to the foregoing requirements may be rejected. 6.4 Refusal to Issue Declaratory Ruling The Agency may for good cause refuse to issue a declaratory ruling. Without limiting the generality of the foregoing. the Agency may so refuse where: (a) The question is speculative or purely hypothetical and does not involve existing fact, or facts which can reasonably be expected to exist in the near future. (b) The petitioner's interest is not of the type which would give him standing to maintain an action if he were to seek judicial relief. (c) The issuance of the declaratory ruling may adversely affect the interests of the City, the Agency, or any of their officers or employees in any litigation which is pending or may reasonably be expected to arise. (d) The matter is not within the jurisdiction of the Agency. 6.5 Referral to Other Agencies Where any question of law is involved. the Agency ?nay refer the matter to the Corporation Counsel. The Agency may also obtain the assistance of other agencies, where necessary or desirable. . 6.6 Notification of Petitioner Upon the disposition of his petition. the petitioner shall be promptly informed thereof by the Director. 6.7 Status of Orders Orders disposing of petitions shall have the same status as other Agency orders. Orders shall be applicable only to the fact situation alleged in the petition or set forth in the order. They shall not be applicable to different fact situations or where additional facts not considered in the order exist. RULE 7. DEFINITIONS For the purpose of these Rules and Regulations, unless it is plainly evident from the context that a different meaning is intended, certain words and phrases used herein are defined as follows: a. "Agency" means the Department of Land Utilization, City and County of Honolulu. b. "City" means the body politic and corporate by the name of "City and County of Honolulu." C. "Coastal Engineor" means a registered professional engineer qualified by training and experience to. design. plan, or propose methods and means of imposing structures and facilities upon shore or ocean environments in such a manner that such environments are protected. d. "Commission" means the Land Use Commission of the State of Hawaii. e. "Director" means the Director of Land Utilization, City and County of Honolulu. f. "Nonconforming structure" means any structure which was previously 1 awf u 1 and existing within the shoreline setback area prior to the effective date of Act 136. SLH 1970, or June 22. 1970. 9- "Nonconforming use" means the use of a build ing or structure, or of a parcel of land, lawfully existing within the shoreline setback area prior to the effective date of Act 136, SLH 1970. or June 22, 1970. h. "'Preliminary Construction Plan" means a detailed construction drawing prepared to an appropriate scale, showing the design of the proposed construction. i. "Revetment" means a facing of stone, concrete, blocks, or similar material built to protect a scarp, embankment. or shore structure against erosion by wave action or currents. 0 j. "Shoreline" means the upper reaches of the wash of waves, other than storm and tidal waves.' usually evidenced by the edge of' vegetation growth. or the upper line of debris left by the wash of waves. A shoreline shall not be established along berms. causeways.. revetments. and similar structures which enclose fish ponds, pools, tidal basins. and similar facilities. In addition, a shoreline shall not be established along harbors. inland waterways. marinas. inland ponds. and lakes. k. "Shoreline area" means all of the land area between the shoreline and the shoreline setback line. 1. "Shoreline setback line" means that line established by the State Land Use Commission or the City and County of 11onolulu running inland from and parallel to the Shoreline at a horizontal plan. m "Special Management Area Use Permit (SMP)II means an action by the authority authorizing development. the valuation of which exceeds $65.000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects.. n. "Structure" means anything constructed or erected with a fixed location on the ground, or requiring a fixed location on the ground, or attached to something having or requiring a fixed location on the ground. 0. "Vegetation growth" means any plant, tree, shrub, grass. or groups, clusters or patches of the same, rooted and growing. RULE 8. INFORMAL DISCUSSION A person seeking a variance from any provision of these Rules and Begulations with respect to a specific parcel or parcels of land may discuss the matter informally with the Director or his authorized representative. RULE 9. SHORELINE SETBACK LINE 9.1 Lines Established Shoreline setback lines are established throughout the City and County of Honolulu by the Commission at 40 feet inland from the upper reaches of the wash of waves other than storm and tidal waves, except that such shoreline setback lines shall be 20 feet inland on any land parcel of record when any one or more of the following conditions exist: (a) Where the average depth of the parcel, as measured from the shoreline or the seaward boundary of the parcel. whichever is less, is less than 100 feet. The average depth -of the parcel shall be determined by standard geometrics of a rectilinear divisions of the total lot. The Director's finding relating to determination 'of the average depth shall be final. (b) Where the parcel area is less than the minimum lot area required'by Chapter 21 of the Revised Ordinances of the City and County of Honolulu. as @mended. This provision shall be applicable* only in zoning districts with minimum lot sizes under the Comprehensive Zoning Code' of 7,500 square feet or less. (c) Where the buildable area of the parcel is reduced to less than 50 percent of the parcel area after applying the 40-foot shoreline setback line and all State requirements arid the various yard. cross slope and other requirements of Chapter 21 of the Revised Ordinances of Honolulu. as amended. The parcel area shall be exclusive of any vehicular or pedestrian access easements and open drainage channel easements and measured within the boundaries of the lot inland of the shoreline and the shoreline itself. 9.2 No Reduction of Shoreline Setback Line A 40-foot shoreline setback line initially established by the State Land Use District Regulations of the Commission shall not be adjusted or moved under the provisions of Rule 9.1. 9.1(a), 9.1(b), or 9.1(c) by virtue of any subsequent erosion, accretion. subdivision. change in zoning. or change in land use affecting,the parcel. 9.3 Shoreline and Setback Lines to be Shown on Maps, etc. Shoreline and setback lines shall be shown on all maps. plats, plans, construction drawings. documents. and any similar material. as a condition precedent to final approval. All permits and approvals required to subdivide.' convey. develop, use, grade. or sell any portion of lands subject to shoreline setbacks shall be granted only upon approval under these Regulations by the Director. 9.4 Parcels Adiacent Narrow Shoreline Parcels Parcels separated from the shoreline by an intervening narrow parcel, including beach reserves, shall be subject to these Regulations when any part of the parcel so sepaiated falls within the shoreline setback.. RULE 10. SHORELINE LOCATION ADD MEASUREMENT 10.1 Instrument Surveys Actual f ield 'Location of the shoreline in accordance with the definitions herein, along with existing property lines, shall be located, marked. and platted by instrument surveys by a land" surveyor registered in accordance with Chapter 464. Hawaii Revised Statutes, as amended. Survey maps prepared by the registered land surveyor ishall bear his signature. the date of his field survey, and confirming statement and signature of the State Land Surveyor. The State Land Surveyor's signature shall be placed over the following statement on the map (print) : "The shoreline as located %and certif ied and delineated in red is hereby confirmed . as being the actual shoreline as of (date) .11 Shoreline setbacks. shall be measured inland from the shoreline as determined and certified by the Registered Land Surveyor and as confirmed by the Hawaii State Land Surveyor. Survpy Division, Department of Accounting and Ceneral Services. 10.2 Actual Field Surveys An application for any construction or use relative to lands adjacent to and inland of the shoreline under these Rules and Regulations shall be accompanied by a map showing the location of a shoreline based upon actual field surveys conducted by a registered land surveyor within twelve (12) months prior to filing. If an application for governmental action is withdrawn or held in abeyance at the request of the applicant or due to noncompliance with other provisions of these Rules and Regulations in order to complete the application. or it a decision is not rendered for just and due cause by the Agency, the shoreline survey data shall become void two (2) years from the date of the original field survey. Notwithstanding the provisions of this paragraph. the Director may require up-to-date surveys upon his determination that significant changes have occured along the shore. 10*1 Authority to Waive Instrument Surveys The Director may waive the requirements for instrument surveys as indicated by Rule 10.1 when the applicant submits evidence that the proposed construction is located 55 feet or more and 35 feet or more inland from the purported shoreline for 40 feet and 20 feet shoreline setbacks, respectively. Request for such waivers shall be made in writing with supporting data. The Director shall take action in writing to approve or disapprove. I RULE 11. ACTIVITIES SUBJECT TO THESE RULES AND REGULATIONS All proposed public and private construction or subdivision involving land within the shoreline setback, and all applications thereof for permits. reviews, approvals, and any other similar procedures for governmental review are subject to these Rules and Regulations. Construction shall include, but not be limited to remodeling, reconstruction, or replacement. Approval based upon these Rules and Regulations does not relieve the applicant of responsibility for compliance with other applicable statutes. codes. ordinances. or rules and regulations. RULE 12. AUTHORITY OF THE AGENCY ALONG THE SHORE 12.1 Type of Activity All construction, improvements. grading, clearing, grubbing, filling, and such related activities wit@in the shoreline setback shall be subject to review and approval of the Director under these Rules and Regulations. Land seaward of the certified shoreline is not subject to these Rules and Regulations. Where other agencies hold jurisdiction over adjacent inland land. review by these agencies as well as by the Director is required. 12.2 Emergency Work Nothing contained in these Regulations shall be deemed to prevent the strengthening or restoring to a safe condition of any building, structure or facility, provided, however. that approval of the Director is obtained. The Director shall seek and obtain the advice and counsel of the Director and Chief Engineer or the Director and Building Superintendent of the City and County of Honolulu prior to granting such approvals. -A RU1'1E 13. PROITIBIT1014S 13.1 Removal Prohibited The removal of sand, coral, rocks, soil, shells, or other beach compositions or natural plants and materials within the shoreline setback is prohibited. Such removal shall be prohibited for any purpose except for reasonable domestic, non-commercial use which shall not involve construction, repairs. reconstruction, grading. or filling. 13.2 Topography Chantle Removal of sand, coral, etc., enumerated in Rule 13.1 for reasonable domestic. non-commercial use shall not be made in any manner or extent so as to change the basic topography. physical appeara nce. or configuration of the shoreline setback. 13.3 Structure Not Permitted No structure or any portion thereof, including but not limited to seawalls. groins, and revetments, whether built above. on. or below the ground surface, is permitted wi.thin the shoreline setback unless indicated otherwise under these Rules and Regulations. Construction of facilities that are accessory or incidental to structures located in areas immediately adjacent to the shoreline setback shall not be permitted. Roads, streets, driveways. paved walkways. utility lines (whether overhead. surface, or underground), grading and filling work, and any and all other construction work whether related to structures or not. are not permitted within the shoreline setback. 13.4 Permissible Mini.nq Any sand mining operation within the shoreline setback which has been legally in operation for a period of at least two years immediately prior to June 22. 1970, may temporarily continue until July 1. 1975. Continued operation during this period is contingent upon not exceeding the scope of operations existing on June 022, 1970. RULE 14. FACILITIES PERMITTED WITHIN THE SHORELINE SETBACK 14 .1 Protection of Property Special structures necessary for safety reasons to remedy conditions that require such structures or to protect property from erosion or wave damages shall be permitted upon compliance with all applicable laws. ordinances. codes, and regulations and upon approval by the Director. The Director shall not approve the construction of such structures within the shoreline .setback w ithout the concurrence of the Director and Chief Engineer of the Department of Public Works or the Director and Building Superintendent of the City and County of 11onolulu. 14.2 Certification Necessary All such applications for approval by the Director shall be accompanied by preliminary construction plans and a certification report from a Coastal Engineer indicating that: (1) the structure is needed for safety reasons or to protect the property from erosion or wave damages, (2) the proposed construction is the best alternative of several investigated, and (3) the proposed construction will not cause any adverse effect on or significant change to, the shoreline. Upon approval of preliminary construction plans. the applicant may proceed with final construction plans and documents for review and approval in accordance with other applicable laws, ordinances. codes. regulations. and procedures. Both the preliminary and final construction plans shall reference all elevations to a Mean Sea Level (MSL) or a Mean Lower Low Water (MLLW) datum. The horizontal location of the proposed structure shall be referenced to some identifiable point, and the nearshore topography. seaward of the structure to the shoreline. shall be included. 14.3 Nonconforminq Structure Any lawful nonconforming structure existing within the shoreline setback on June 22, 1970 shall be permitted * A structure not conforming to this Section but for which a building permit application or other appropriate permit application has been filed on or before June 22, 1970 shall also be permitted as a nonconforming structure, subject to existing ordinances and regulations of the City and County of Honolulu. 14.4 Enlargement and Discontinuance Any nonconforming structure. driveway. roadway. or utility may be replaced, removed, or reconstructed upon compliance with applicable State and County requirements within the shoreline setback: provided, that no such nonconforming structure shall be substantially enlarged or altered to another nonconforming use. If the use of any nonconfor@ing structure is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited.. 14.5 Extended Use of Land No nonconforming use of land shall be enlarged or increased or extended to occupy a greater area of land than was occupied on June 22. 1970. No nonconforming use of land shall be moved in whole or in part to any portion of the lot within the shoreline setback. 14.6 Exempted Improvements Upon the submittal of preliminary construction plans. data, and certification reports by a Coastal Engineer. 'and a public hearing conducted by the Director. private construction of tunnels, canals. basins, and ditches. together with associated structures used by public utilities. wharves, docks. piers, and other harbor and waterfront improvements and any other maritime facility and water sport recreational facilities may be permitted within the shoreline setback. The Director may approve of such private construction plans only upon finding that the proposed structures will result in a minimum interference with natural shoreline processes. Government construction of facilities as indicated in the paragraph immediately preceding shall be exempt from tile provisions of t1iis part. The governmental body charged with the construction shall. however. hold two public heacings as follows: (a) When tile project is first conceived. and (b) When the project is substantially designed and planned. but prior to the letting of the construction contract. Maintenance and. repair work on existing and permitted facilities, whether public or private, shall be exempt f rom these Rules and Regulations: provided. however. that other applicable codes, ordinances. laws. regulations. or rules are complied with. 14.7 Construction on State Land Facilities indicated in Section 14.6. constructed on State land by the State shall be submitted for "review and information of the Director. The Director shall make a finding as to whether or not the proposed construction as indicatpd on the plans is in conflict with any ordinances. zoning laws, and building code of the City and County of Honolulu. The State shall not proceed with such construction until certification by the Director tliat there are no sucli conflicts. RULE 15. ADMINISTRATION OF THESE RULES AND REGULATIONS 15.1 Review of Plans TI.,:! Director sh.all review and approve or disapprove all plans submitted in accordance with these Rules 'and Regulations. The Director may require additional plans or data in addition to those specified. Changes in any plans or data submitted in order to obtain optimum compliance practicable to these Rules and Regulations and that are reasonable and necessary may be required by the Director. 15.2 Application for Variance The Director sliall receive and review plans for proposed structures, facilities, or activities that are proldbited within tile stioreline setback upon the submission of adequate plans and data attached to a properly executed application form requesting a variance through the Department of Land Utilization of the City and County of Honolulu. The application must be accompanied by a fee of one hundred dollars ($100.00) to cover the cost of publishing hearing notices. In the event of a joint public hearing. only one fee will ba required. Certification by the owner or lessee of the property authorizing and condoning the application f or a variance f rom these Rules and Regulations must be provided by the applicant or agent. 15.3 Justification for Variance Variance applications from these Rules and Regulations shall be accompanied by accurate written statements to substantiate that: (a) the structure, activity. or facility requested is in the public interest. or (b) hardship will be caused to the applicant if the proposed structure, activity, or facility is not allowed on that portion of the land within the shoreline setback. 15.4 Reports from Other Agencies Within 30 days of the receipt of a complete application, the Director shall assess the environmental effects of the proposed variance in accordance with the provisions of Chapter 343, Hawaii Revised Statutes, and shall determine if an Environmental Impact Statement is required. 15.5 Public Hearing Within forty-five (45) days of the completion of the environmental requirement (Negative Declaration or an accepted Environmental Impact Statement), or in the case of a concurrent Shoreline Setback Variance/Special Management Area Use Permit (SMP) application, within sixty (60) days of receipt of the SMP application. the Director shall hold a public hearing on the matters. 15.6 Decision Within forty-five (45) days after the hearing on the applicant's claims. the Director shall render a written decision for approval or disapproval unless such period is extended by written agreement between the Director of Land Utilization and the applicant. In cases where action is required by the Council on an SMP, 'the Director shall forward both recommendations to the Council in accordance with the provisions. of the Special Management Area ' ordinance. The Council, in the case of a shoreline variance and SMP, may grant a variance which may be subject to such conditions as will cause the structure. activity. or facility to result in minimum interference with natural shoreline processes, only upon finding affirmatively on Rules 15.3(a) and 15.3(b) of these Rules and Regulations. RULE 16. ENFORCEMENT The Director shall enforce the shoreline setbacks and these Rules and Regulations. RULE 17. PENALTIES Any person who violates any provision for shoreline setbacks or these Rules and Regulations shall be fined not more than one thousand dollars ($1,C00). Each day of a continuing violation after conviction shall be a separate offense. RULE 18. VALIDITY If any section or part of these Rules and Regulations is held to be invalid for any reason whatsoever. such invalidity shall not affect the validity of the remaining sections or part of these Rules and Regulations. RULE 19, EFFECTIVE DATE OF THESE RULES AND REGULATIONS These Rules and Regulations shall become effective upon their approval by the Mayor of the City and County of Honolulu and ten (10) days after filing with the City Clerk. Approved this day of @V--@ A. D. 19L-I. V EILEEN R. ANDERSON, Mayor City and County of Honolulu NOTICE OF PUBLIC HEARING PUBLISHED IN MONDAY ADVERTISER ON MAY 2. 1983 APPROVED AS TO FORM: 5e-&ty Corporation Counsel Date Received this 14th day of June A.D. 1983. for MOND PUA C ty Clerk OA it APPENDIX D SHORELINE MANAGEMENT AREA (SMA) RULES & REGULATIONS CITY AND COUNTY OF HONOLULU CHAPTER33 SPECIAL MANAGEMENT CITY AND COUNTY 0F HONOLULU. Article 1. General Provisions Sec. 33-1.1. Authority. Pursuant to authority conferred by Statutes. the regulations and procedures established and shall apply to all lands within the special management area of the City and County of Honolulu. (A See. 33-1.2. Purpose. It is the City and County of Honolulu's policy to preserve, protect and where possible, to restore the natural resources of the coastal zone of Hawaii. Special controls on development within an area along the shore- line are necessary to avoid permanent loss of valuable resources and fore- closure or management options. and to insure that adequate public access is provided to public owned or used beaches, recreation areas, and natural reserves, by dedication or other means. (Am. Ord. 84-4) Sec. 33-1.3. Definitions. Whenever the following words are use in this chapter, they shall have the meaning ascribed to them in this section Amended: to clarify but not replace or negate the definitions used in chapter 205A. Ordinance Hawaii Revised Statutes. 87-73 (1) "Agency" means the dcpartment of land utilization, City and County of Honolulu. (2) "Applicant" includes any individual, organization, partnership. firm, association. trust, estate, or corporation including any utility,and any agency of Federal. State and Cot (3) "Council*' means the city council of the City and County of Hono- lulu. which body shall act as the "authority" under chapter 205A, Hawaii Revised Statutes. (4) -City and County" means the City and County of Honolulu. (5) "Crops- mean agricultural produce or part(s) of plants or trees cultivated for commercial or personal (6) "Development" means, any of the uses, activities, or operation land; in or under water, within the special management area that are included below. but not those uses, nc paragraph (13). 405 3. REVISED ORDINANCES oF HONOLULU � 33-1.3. � 33-1.3. SPECIAL MANAGEMENT (A) "Development" includes the following: (C) Whenever the authority rinds that any use, activity,or (i) The placement or erection or any solid material or any operation excluded in paragraph (13) is or may become part of a larger gaseous. liquid, solid, or thermal waste; project, tile cumulative impact of which may have a significant ii) Grading. removing, dredging, mining, or extraction of any environmental or ecological effect on the special management area, materials-, that use. activity. or operation shall be defined as "development"for (iii) Change in the density or intensity of use of land. including thepurpose of this part. but not limited to the division or subdivision of land; (7) "Dircctor" means the director of the department of land utiliza- (iv) Change in the intensity of use of water, ecology related tion, City and County of Honolulu. thereto, or of access thereto: and (8) "EIS" means in informational document prepard in compliance (v) Const ruct ion. reconstruct ion. demolition, or alternation of the with the Environmental Quality'Commision's Rules and Regulations size of any structure. implementing chapter 343, Hawaii Revised Statutes (i) "Development" does not include the following: (9) "Emergency permit" means specialmanagement are emergency (i) Construction of a single-family residence that is not part of a permit as defined in section 20SA-22(5), Hawaii Revised Statutes, larger development: (10) "Minor pcrmit"means. special management area minor permit as (ii) Repair or maintenance or roads and highways within defined in section 205A-22(6), Hawaii Revised Statutes existing rights-of Way. ( 1 1) "Shoreline" means the upper reaches of the wash of the waves, (iii) Routine maintenance drodging of exiting streams, other than storm and tidal waves, usually evidenced by the edges of channel%. and drainage ways. vegetation growth or the tipper limit of debris left by the wash of the (iv) The repair and maintenance of underground utility lines. waves, or as delincated ona shoreline survey which has been certified in accordce including but not limited to water. sewer. power,and telephone with the City and County Shoreline Setback Rules and minor appurtenant structures such as pad mounted transformers Regulations. and sewer pump stations: (12) "Shoreline mannagement permit" shall also mean special manage- (v) Zoning variances, except for height, density, parking and ment area use permit. shoreline setback. (13) "Shoreline survey" means that survey required under the Shore- (vi) Repair. maintenance, or interior alterations to existing line Setback Rules and Regulations of the City and County of Honolulu structures-. adopted pursuant to section 205-32, Hawaii Revised Statutes. (vii) Demolition or removal of structures. except those struc- (14) "Special management area" means the land extending inland tures located oil any historic site a% designated in national or state from the shorelince.as established in this ordinance and delincated on the registers maps established by the council and filed with the council and agency pursuant to section 205A-23, Hawaii Revised Statutes. site as designated in national or state registers. (15) "Special management area minor permit" means an action by the (viii) The use or any land for tile purpose of cultivating. planting. agency authorizing development, the valuation of which is not in excess growing. Ind harvesting of plants. crops, trees. and other agri- of $65,000 and which has no substantial adverse environmental or cultural. horticultural, or forestry products or animal husbandry,or ecological errect, taking into account potential cumulative effects. aquaculture or mariculture of plants or animals, or other agri- (16) "Special management area use permit" means an action by the cultural purposes subject to review by the authority in accordance authority authorizing development, the valuation of which exceeds with paragraph (C); $65,000 or which may have a substantial adverse environmental or ix) The transfer of title to land: (.x) The creation or termination of casements, covenants. or (17) "Structure" includes, but is not limited to, any building,road, other rights in structures or land;and pipe. flume. conduit. siphon, aqueduct, telephoneline, and electrical. (xi) The subdivision of land into lots greaterthan twenty acres in power transmission tower and distribution line. size 406 40 S 33-21 REVISED ORDINANCES OF HONOLULU 33-32 S 33-3.3. SPECIAL MANAGEMENT AREA s 33-3.2. (B)Adewuate and properly located public recreation areas and wildlife preserves are reserved; ` (C)Provisions are made for solid and liquid waste treatment,dis- (18) "Valuation" shall be determined by the agency and means the position, and management which will minimize adverse effects upon estimated cost to replace the structure in kind, based on current replace- special management area resources; and ment costs, or in the cases of other development, as fefined in paragraph (D)alterations to existing land forms and vegetations, except (A) above, the fair market value of the development,(Am. Ord. K 1-4 crops, and construction of structures shall cause minimum adverse 85-195) effect to water resources and scenic and recreational amenities and minimum danger of floods, landslides, erosion, siltation, or failure in Article 2. Special Management Area, the event of earthquake. Sec. 33-2.1. Adoption. (2)No development shall be approved unless the council has firs The special management area, as established by the council in this found that: chapter and shown on the special management area maps, which maps are (A)The development will not have any substantial, adverse hereby adopted and made a part of this chapter and filed with the council environmental or ecological effect except as such adverse effect is on the effective date of this chapter, shall be the City and County's official minimized to the extent practicable and clearly outweighed by public special management area to be administered and enforced under the health and safety,or compelling public interest. Such adverse effect provisions of this chapter.(Am. Ord. 84-4, 85-105) shall include, but not be limited to, the potential cumulative impace of individual developments, each one of which taken in itself might not Sec. 33-2.2. Included Area. have a substantial adverse effect and the elimination of planning The special management area shall include those areas of the Island of options; Oahu so designated on the maps: the islands witin three miles offshore of (B)The development is consistent with the objectives and policies Oahu, including but not limited to those islands shown on the maps: and set forth in section 33-3.1 and area guidelines contained in section the Northwestern Hawaiian Islands, which include Nihow, Necker Island. 205A-26, Hawaii Revised Statutes;and French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan Island, (C)The development is consistent with the County General Plan, Lisianski Island, Pearl and Hermes Atolt and Kure Atoll. (Am. Ord. development plans, zoning and subdivision codes and other 85-105 applicable ordinances. (3)The council shall seek to minimize, where reasonable: Article 3. Objectives And Policies, Review And (A)Dredging, filling or otherwise altering any bay, estuary, salt Procedural Guidelines. marsh, river mouth, slough, or lagoon; Sec. 33-3.1. Objectives And Policies. (B)Any development which would reduce the size of any beach or The objectives and policies of this chapter shall be those contained in other area usable for public recreation; section 205A-2, Hawaii Revised Statutes. (Am. Ord. 84-4) (C)Any development which would reduce or impose restrictions upon public access to tidal and submerged lands, beaches,portions of Sec. 33-3.2. Review Guidelines. rivers and streams within the special management area and the mean The following guidelines shall be used by the council or its designated high tide line where there is no beach; agency for the review of developments proposed in the special management (D)Any development which would substantilly interfere with or area. detract from the line of sight toward the sea from the State highway nearest the coast; (1)All development in the special management area shall be subject (E)Any development which would adversely affect water quality, to reasonable terms and conditions set by the council to insure that: existing areas of open water free of visible structures, existing and (A)Adequate access, by dedication or other means, to publicly potential fisheries and fishing grounds, wildlife habitats,or potential owned or used beaches, recreation areas, and natural reserves is or existing agricultural uses of land, (Am. Ord. 84-4) provided to the extent consistent with sound conservation principles: 409 408 33-3.3. REVISED ORDINANCES OF HONOLULU � 33-3.3. � 33-3.3. SPECIAL MANA 33-3.3 Sec. 33-3.3. Procedural Guidelines. (C) Determination (C) Determination. All development within the special management area shall be subject to (i) The director shall, within thirty days after receipt of the assessment by the agency under the provisions of this chapter. Such assess- request for assessment, notify the applicant by mail, with a copy to ment shall lie pursuant to the objectives. policies and guidelines set forth the council, that lie has determined the proposal to: herein. (aa) be exempt form the requirements of this chapter; (1) Consultation. (bb) require a special managemnet area minor permit; Any applicant contemplating development within the special manage- (cc) require a special managemnet area use permit, but not to ment area shall contact the agency for information regarding procedures require an environmental impact statement; or and general information which may have a direct influence on his (dd) require a spcial management area use permit, and to proposed development. require an environmental impact statement. Any development which has been assessed under National Environ- (ii) The director shall declare a development proposal exempt mental Policy Act or under chapter 343. Hawaii Revised Statutes, and where he finds that the proposal is not defined as development for whicha negative declaration has been filed ora required EIS has been under section 33-1.3(6)(b). accepted may apply directly for a special management area use permit (iii) The director shall issue a special management area minor pursuint to section 33-5. 1, to waive the assessment procedures in section permit where he finds that the development proposal; 33 -3.3(2). (aa) has a valuation or fair market value not in excess of (2) Assessment Procedures. $5,00; and (A) Filing. (bb) will not significantly affect the special management area. Any applicant subject to assessment shall be responsible for riling (iv) The director shall declare that a special management area the following with the agency: use permit is required, and shall issue a negative declaration which (i) A completed application form (to be obtained from the shall be filed with the council and with the Environmental Quality agency). Commission if such is required under the provisions of chapter 343, (ii) A tax map key identification of the property on which the Hawaii Rivised Statutes, where he finds that the proposal: applicant proposes his development. (aa) has a valuation or fair market value in excess of $65,000: (iii) A plot plan of the property. drawn to scale. and (bb) will not significantly affect the special managemnet area; (iv) A written description of the proposed development and it or statement of objectives, and an estimate of the valuation of the (cc) is supported by studies whihc, in the director's judgment, development. sufficiently describe the potential environmental effects on the (v) A written description of the affected environment which special management area. addresses the development's technical and environmental (v) The director shall declare that aspecial management area use characteristics. permit is required, and shall issue an environmental impact state- ment preparation notice with the council, regardless of the valua- (vi) A shoreline survey if the parcel abuts the shoreline. tion or fair market value of the proposal where he finds tht the (vii) Any other relevant plans or information pertinent to the proposal may significantly affect the special management area and analysis of the development required by the agency. that suffcient information to evaluate this impact is not available. (B) Assessment. (vi) The Negative Declaration and Environmental Impact State- The director shall assess the proposal upon the applicant's ment preparation notices shall contain all the information required compliance with section 33-3.3(2)(A) based oil the following criteria: to be presented under the Environmental Quality Commission (i) The valuation or fair market value of the development. Rules and Regulations. (ii) The potential effects and the significance of each effect according to the Significance Criteria established by section 33-4. 1. 410 33-4.1. REVISED ORDINANCES OF HONOLULU � 33-5.2. � 33-5.3 SPECIAL MANAGEMENT AREA 33-6.2. (vii) The director shall assure that the public is informed of his See. 33-5.3. Public Hearings. determinations on special management area use permits through The agency, pursuant to powers of delegation given to the city council publication of notices in the EQC Bulletin or another publication. under chapter 205A, Hawaii Revised Statutes, shall hold a public hearing (Am.Ord. 94-4) at a date set no less thin twenty-one or more than sixty calendar days after the date on which tile application is accepted, unless the sixty-day period is waived by the applicant. The agency shall give adequate notice to the Article 4. Significance Criteria And Procedures. pertinent neighborhood boards, the owners of all property within 300 feet Sec. 33-4.1. Significance Criteria. of the affected property as well as to all owners of all property described in the application. The agency shall give written notice, once in a newspaper of In assessing the significance or a development, the director shall confine general circulation in the County and once in a newspaper of general circu- his criteria to tile objectives, policies and guidelines in article 3 of this lation in the State, at least twenty calendar days in advance. The notice shall chapter. (Am. Ord. 84-4) state the nature of the proposed development for which a permit applica- Sec. 33-4.2. Procedures. tion is made and of the time and place of public hearings. In proccssing a negative declaration or environmental impact statement. The hearing shall he held in the area in which the development is the director shall adhere to the procedures set forth in chapter 343, Hawaii proposed. Whenever possible, any such hearing shall be held jointly and Revised Statutes, and tile regulations adopted thereunder by the Environ- concurrently with any other hearing required for the same development. mental Quality Commission. In the event that a development is not subject (Am. Ord. R4-4) to tile chapter, but the director requires an M.S. filing shall be with tile Sec. 33-5.4. Agency Recommendation. agency. (Am. Ord. 84-4) Upon conclusion of the public hearing, the agency shall transmit its findings and recommendations thereon, within ten working days, directly Article 5. Permit Processing Procedures. to the city council for its consideration and decision. (Am. Ord. 84-4) Sec. 33-5.1. Required Materials. Sec. 33-5.5 Any applicant who has received a determination under section The councl shall grant with conditions, or deny any application for 33-3.3(2)(C) that this proposal requires a special management area use special management area use permit within sixty calendar days after the permit or when such determination has been waived under sec. 33-3.3(1) agency's public hearing, unless an extension has been agreed to by the shall submit the following to the agency: applicant. (Am. Ord. 94-4) (1) A written notification to proceed with the special management area use permit processing. Article 6. Prohibition. (2) A copy of either the negative declaration, or a copy of a completed and accepted EIS. Sec. 33-6.1. Permit Required. (3) Any additional information as to the areas of critical concern as No development or structure shall be constructed within the special deemed necessary by the agency. management area without first obtaining a special management area use (4) A $100 filing and processing fee. Such filing fee shall be waived for permit, a minor permit, or being exempted pursuant to the provisions of public agency projects. (Am. Ord. 84-4) this chapter. (Am. Ord. 84-4) See. 33-5.2. Acceptance. See. 3.1-6.2. Permit To Precede Other Upon compliance with the foregoing procedures, the director shall notify No agency authorized to issue permits pertaining to any development within the special management area established by this chapter shall the applicant by certified mail within 7 days of receipt that the application authorize any development unless approval is first received pursuant to the has been accepted. Tile dircetor shall also concurrcrilly provide tile council with the date of acceptance or the application and brief description of the provisions or this chapter. For purposed of this section, county general proposal contained in the application. (Am. Ord. 94-4) 412 � 33-7.1. REVISED ORDINANCES OF HONOLULU � 33-9.1. 33-10.1. SPECIAL MANAGEMENT AREA 33-10.1 plans. development plans, State land use district boundary amendments, Article 10. Severability. and zoning changes are not permits. (Am. Ord. 84-4) See. 33-10.1. Invalid Provisions. If any provision or this chapter or the any person Article 7. Exemptions. or circumstances is held invalid, the invalidity does not affect other Sec. 33-7.1. Emergency Permits. provisions or applications of conditions of this chapter which can be given In cases of emergency repairs to existing public utilities including, but effect without the invalid provision or application, and to this end the not limited to, flood control structures, water, sewer, gas and electric trans- provisions or this chapter are severable.(Am. Ord. 84-4) mission lines and highways. the respective governmental agency or public utility company is exempt from obtaining a permit pursuant to the require- ments of this chapter. Two reports on such repair projects, the valuation of which exceeds $65,000, shall be recorded with the agency, one within three days after the start of the project and the other upon its completion. In the event in impending disaster or disaster his been declared under chapter 13, article 30, Revised Ordinances of Honolulu, 1978, as amended, or under chapters 127 and 128, Hawaii Revised Statutes, the requirements or this chapter shall be waived. (Am. Ord. 84-4) Article 8. Penalties. See. 33-8.1. Civil Fine. Any person who violates any provision of this chapter shall be subject to a civil fine not to exceed S10,000. (Am. Ord. 84-4) Sec. 33-8.2. Additional Fines. In addition to any other penalties. any person who performs any development in violation or this part shall be subject to a civil fine not to exceed S500 a day for each day in which such violation persists. (Am. Ord. 84-4) Article 9. Appeals. See. 33-9.1. Appeal In Accordance Willi Statute. Appeals shall be in accordance with section 205A-6. Hawaii Revised Statutes. (Am. Ord. 84-4) (SMA) ORDINANCE NO. (87-73 BILL NO. 42 (1987) (CD-2) A BILL FOR AN ORDINANCE TO AMEND CHAPTER 33, REVISED ORDINANCES OF HONOLULU 1978 (1983 EDITION) , AS AMENDED, RELATING TO THE SPECIAL MANAGEMENT AREA OF THE CITY AND COUNTY OF HONOLULU. BE IT ORDAINED by the People of the City and County of Honolulu: SECTION 1. Chapter 33, Revised Ordinances of Honolulu 1978 (1983 Edition) , is hereby amended in the following respects: a. By amending Section 33-1.3 to read as follows: Sec. 33-1.3. Definitions. "Agency" means the department of land utilization, City and County of Honolulu. [(2)] "Applicant" includes any individual, organization, partnership, firm, association, trust, estate, or corporation including any utility, and any agency of Federal, State and County government. [(3)) "Council" means the city council of the City and County of Honolulu, which body shall act as the "authority" under chapter 205A, Hawaii Revised Statutes. [(4)] "City and County" means the City and County of Honolulu. [(5)] "Crops" mean agricultural produce or part(s) of plants or trees cultivated for commercial or personal use. [(6)] "Development" means, any of the uses, activities, or operations on land; in or under- water, within the special management area that are included below,but not those uses, activities, or operations excluded in paragraph (B). 87-73 (D-590/5-26-87) 73 (A) "Development" includes, but is not limited to the foilowing: (i) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (i-4) Grading, removing, dredging, mining, or extraction of any materials; (iii) Change in the density or intensity of use of land, including but not limited to the division or subdivision oil- 'Land; C."v) Change in 14--he intensity of use o- water, ecology related thereto, or of access thereto; and Cv) Construction, reconstruction, demolition, or alteration o-f the size of anv structure. (B) "Develcpment" does not include the following: U) Construction of a single-fa-mily residence that is not part of a larger development; (ii) Repair or maintenance of roads and highways within existing rights-of-way; (iii) Routine maintenance dredging of existing streams, channels, and drainage ways; (iv) The repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; -2- 87 - "-1`3 87-73 (v). Zoning variances, except for height, density, parking and shoreline setback, (vi) Repair, maintenance, or interior alterations to existing structures; (vii) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers; (viii) The use of any land for the purpose of cultivating, planting, growing, and harvesting plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry or agriculture or mariculture of plants or animals, or other agricultural purposes subject to review by the authority in accordance with paragraph (C); (ix) The transfer of title to land; (x) The creation or termination of easements, covenants, or other rights in structures or land; (and] (xi) The subdivision of land into lots greater than twenty acres in size; (xii) The subdivision of a arce of land into four or fewer parcels when no associated construction activities are proposed, provided that any such land which is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision, of any of the resulting parcels; (xiii) Installation of underground utility lines and appurtenant aboveground fixtures less than tour feet in height along existing corridors; -3- 87-73 87-73 (xiv) Structural and nonstructural improvements to existing single-family residences including additional dwelling unit, where otherwise permissible; and (xv) Nonstructural improvements to existing commerical structures. (C) Whenever the authority finds that any use, activity, or operation excluded in paragraph (B) is or may become part of a larger project; the cumulative impact of which may have a significant environmental or ecological effect on the special management area, that use, activity, or operation shall be defined as "development" for the purposes of this part. [(7)] "Director" means the director of the department of land utilization, City and County of Honolulu[.], or authorized subordinate-. [(8)] "EIS" means an informational document prepared in compliance with the Environmental Quality Commission's Rules and Regulations implementing chapter 343, Hawaii Revised States. [(9)] "Emergency permit" means special management area emergency permit as defined in section 205A-22(5), Hawaii Revised Statutes. [(10)] "Minor permit" means special management area minor permit as defined in section 205-22(6), Hawaii Revised Statutes. "Person" means any individual, organization, partnership, firm, association, trust, estate, public or private corporation, the State or any of its political subdivisions, or any other legal entity. [(11)] "Shoreline" means the upper reaches of the wash of the waves, other than storm and tidal waves, at high tide during the season of the year in which -the highest wash-of the waves occurs, usually evidenced by the edges of vegetation -4- 87 - 73 87-73 growth or the upper limit of debris left by the wash of the waves, or as delineated on a shoreline survey which has been certified in accordance with the City and County Shoreline Setback Rules and Regulations. [(12)] "Shoreline management permit" shall also mean special management area use permit. [(13)] "Shoreline survey" means (that survey required under the Shoreline Setback Rules and Regulations of the City and County of Honolulu adopted pursuant to section 205-32, Hawaii Revised Statutes.] a survey map showing the shoreline as determined by the State Board of Land and Natural Resources in accordance with section 205A-42, HRS, and the rules adopted pursuant thereto. [(14)] "Special management area" means the land extending inland from the shoreline, as established in this ordinance and delineated on the maps established by the council and filed with the council and agency pursuant to section 205A-23, Hawaii Revised Statutes. [(15)] "Special management area minor permit" means an action by the agency authorizing development, the valuation of which is not in excess of $65,000 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects. [(16)] "Special management area use permit" means an action by the authority authorizing development, the valuation of which exceeds $65,000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects. [(17)] "Structure" includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission tower and distribution line. [(18)] "Valuation" shall be determined by the agency and means the estimated cost to replace the 87-73 87-73 structure in kind, based on current replacement costs, or in the cases of other development, as defined in paragraph (A) above, the fair market value of the development. b. By amending Section 33-2.1 to read as follows: Sec. 33-2. 1. Adoption. The special management area, as established by the council in this chapter and shown on the special management area maps, which maps are herby adopted and made a part of this chapter and filed with the council on the effective date of this chapter, shall be the City and County's official special management area to be administered and enforced by the director under the provisions of this chapter. C. By amending Section 33-3.2(2) by amending item (C) to read as follows: (C) The development is consistent with the County General Plan, development plans, and zoning and subdivision codes and other applicable ordinances]. Such a finding of consistency does not preclude con- current processing where a development plan amendment or zone change may aiso be required. d. By amending Section 33-5.1(4) to read as follows: (4) [A $100 filing and processing fee. Such filing fee shall be waived for public agency projects.) An application fee according to the following schedule. Application fees are not re-Fundable and shall be waived for public agency projects. Type of Development Fee (A) Agriculture, agriculture $200 or outdoor recreation developmments (B) All other developments $200, plus an additional $100 per acre or major fraction thereof, up to a maximum of $2,000. 87 -73 87-73 (C) When a special management area application is submitted subsequent to the applicant's being ited for under- taking development without having obtained the necessary permit, the application fee set forth above shall be doubled. e. By amending Section 33-S.1 to read as follows: Sec. 33-8.1. Civil Fine. Any person who violates any provision of this chapter shall, upon notice issued pursuant to section 33-. be deemed to have committed a civil violation and shall be subject to a civil fine not to exceed $10,000. f. By amending Section 33-8.2 to read as follows: Sec. 33-8.2. Additional Fines. In addition to any other penalties, any person who performs any development in violation of this (part] chapter shall upon notice issued pursuant to section 33-10.1, be deemed to have committed a civil violation and shall be subject to a civil- fine not to exceed $500 a day for each day in which such violation persists. g. By amending Chapter 33 by adding a new Article 9 to read as follows: Article -9. Enforcement. Sec. 33-9.1. Issurance Of Notice Of Violation Fund Order. If the director det ermines that any person is violating any provision of this chapter, any -rule adopted thereunder, or any permit issued pursuant thereto, the director may have the person served, by mail or delivery, with a notice of violation and order. (1) Contents of the notice of violation. The notice shall include at least the following information: (A) Date of the notice; (B) The name and address of the person noticed; -7- 87-73 87-73 (C) The section number of the ordinance which has been violated; (D) The nature of the violation; and (E) The location and time of the violation. (2) Contents of the order. (A) The order may require the person do any or all of the following: (i) Cease and desist from the violation; (ii) Correct the violation at the person's own expense before a date specified in the order; (iii) Pay a civil fine not to exceed $10,000 in the manner, at the place and before the date specified in the order;. (iv) Pay a civil fine not to exceed $500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order, if the person has performed any development in violation of this chapter; or (v) Appear before the director at a time and place specified in the order and answer the charges specified in the notice or violation. (B) The order shall advise the person of the finality of the order 20 days after the date of its mailing or delivery unless written request for a hearing is mailed or delivered to the director within said 20 days. Sec. 33-9.2. Effect Of Order; Right To Hearing. The provisions of the order issued by the director under section 33-9-.1 shall become final 24 days after the date of the mailing or delivery or the order unless within those 20 days the person subject to the order 73 87-73 requests in writing a hearing before the director. The request for hearing shall be considered timelv if the. written request is delivered or mailed and postmark dated to the director within said 20 days. Upon receipt of the written request for hearing, the director shall specify a time and place for the person subject to the order to appear and be heard. The hearing shall be conducted bv the director in accordance with the provisions of Chapter 91, Hawaii Revised Statutes. Following said hearing, the director may affirm, modify or rescind the order as in the opnion of the director may be appropriate. Sec. 33-9.3. Judicial Enforcement Of Order. The director may institute a civil action in any court of competent juridiction for the enforcement of any order issued pursuant to sections 33-9.1 and 33-9672. Where the civil action has been instituted to enforce the civil fine imposed by said order, the director need only show that notice of violation and order was served, a hearing was held or the time granted for requesting a hearing had expired without such a request, the civil fine imposed and that the fine imposed has not been paid. Sec. 33-9.4. Judicial Enforcement of Chapter. The director may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent violation or any provision of this chapter, any rule adopted thereunder or any permit issued pursuant thereto, in addition to any other remedy provided for under this chapter. Sec. 33-9.5. Nonexclusiveness Of Remedies. The remedies provided in this chanter for enforcement of the provisions of this chapter, any rule adopted thereunder or any permit issued pursuant therto shall be in addition to any other remedy as may be provided 87-73 h. By renumbering existing Articles 9 and 10 to Articles 10 and 11, respectively, and by amending them to read as follows: Article (9.) 10. Appeals. Sec. [33-9.1.] 33-10.1. Appeal In Accordance With Statute. [Appeals shall be in accordance with section 205-6, Hawaii Revised Statutes. I If any person is aggrieved by the order issued by-the -director pursuant to sections 33-9.1 and 33-9.2, the person may appeal the order in the manner provided in Chanter 91, Hawaii Revised Statutes, provided that no provision of such order shall be stayed on appeal unless specifically ordered by a court of competent jurisdiction. Article (10.] 11. Severability. Sec. (33-10.1.1 33-11.1. Invalid Provisions. If any provision of this this chapter or the application thereof to any person or circumstances is held invalid, applications of conditions of this chanter which can "be invalidity does not affect other provisions or be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. SECTION 2. Ordinance material to be replaced is bracketed. New material is underscored. When revising, compiling or printing this Ordinace for inclusion in the Revised ordinances of Honolulu, the Corporation Counsel need not include the brackets, the bracketed material or the underscoring. -10- 87-73 87-73 SECTION 3. This Ordinance shall take effect upon its approval. INTRODUCED BY: Council Members DATE OF INTRODUCTION: MARCH 18, 1987 Honolulu, Hawaii APPROVED AS TO FORM AND LEGALITY: Deputy Corporation Counsel APPROVED this 15th day of 1987. FRANK F. FASI or City and County of Honolulu 87-73 APPENDIX E SHORE DISTRICTS (S-SH) CHAPTER 8, COMPREHENSIVE ZONING ORDINANCE COUNTY OF KAUAI a " I , I C APTER 8 1 1 COMPPEHENSIVE ZONING I ORDINANCE I I I I I I I I i KAUAI -COUNTY CODE 1 1987 1 1 I 8-12.4 -- 8-13.1 (D) Provisions for siltation and eerrosi control during construction and plans r revegetation of all cleared or graded areas not covered by impervious surfaces; (E) Identification of flood hazards n the site, including the delineation of the loodways and base flood elevations. (2) when required by the Departme of Public Works, hydrologic and geologic report showing the r por effects of the development on ground ater recharger storm water retention and marine wat quality shall be submitted. (3) When required by the P nning Directorr an environmental impact study indi ting critical areas of concern and the effects tb proposed development on physicalp geologicr ecoloofg' and environmental forms and systems such as down ream water qualityr flood plains, wildlife, veget ion and marine ecologies, visual and historic ame ties, and air or ground water pollution. (b) The user stru ure and developmentr if required, shall be subject to addi ional construction and development standards provided i Sec. 15-1, relating to Flood Plain Management. (c) The plicant shall demonstrate to the satisfaction of the Planning Director, the Department of Public Works, and the Manager and Chief Engineer of the County Water epartment that the proposed development will not have a trimental effect on the ecology of the area and v t tha the: tential damage to public utilityr traffic service sys emst as a result of the developmentr has been sub ta ially eliminated. (Ord. No. 1641 August 17P 1972; Sec. 8-12.2t R.C.O. 1976; Ord. No. 416r October 28r 1981; Or . No. 500P March 311 1987) ec. 8-12.4 Modification Of Requirements. The requirements of this Article shall not apply where the applicant demonstrates to the satisfaction of the Department of Public Works that the area in question should not have been included in the Flood District under the criteria established in Sec. 8-12.2. (Ord. No. 164r August 17, 1972; Sec. 8-12.4r R.C.O. 1976; Ord. No. 416P October 28, 1981) ARTICLE 13. SHORE DISTRICTS (S-SH) Sec. 8-13.1 Purpose. To regulate development or alterations to shore and water areas which have unique physical and ecological conditions in order to protect and maintain physicalp t t s biologic and scenic resources of particular value to the 226 8-1.3.2 -- 8-13.3 public (Ord. No. 164, August 17t 1972; Sec. 8-13.1t R.C.O. 1976) Sec. 8-13.2 Lands Included. .. (a) - The Shore District includes the greater of the following shoreline areas (land and water): (1) That area where the Planning Director determines that there is significant interrelationship between the physicalt biologict or ecologic forms or systems characteristic of the shore area; (2) From the low water mark to forty (40) feet inland from the upper reaches of the wash of waves other than storm or tidal waves (or twenty (20) feet in those cases as are provided for by the rules of the State Land Use Commission implementing Chapter 205., H.R.S.). (b) Within five (5) years after the date of this Chapter the Planning Commission shall prepare a Shoreline S'Decial Treatment Zone Plan. The plan upon adoption by the -Planning -Comml"ss'io*n shall determine the boundaries of the Shore District. (Ord. No. 164r August 17P 1972; Sec. 8- 13.2p.R.C.O. 1976) Sec. 8-13.3 Requirements For Development Within The' Shore District. No zoningr building or use permit shall be issuedr nor shall any use requiring the development, grading or alteration of any portion of the Shore District be permittedt unless the applicant establishes conformity with the requirements of this; Article. (a) Applicants for permits shall furnish an Information Report prepared by a person or firm qualified by training and experience to have expert knowledge of the subject. The Planning Director shall determine the adequacy of the report and may require the submission of further in-formation where necessary. The report shall provide information regarding the existing ocean conditions and regarding probable effects of the proposed structurest development, or alterations, as follows: (1) With respect to existing conditionsy the report shall describe the configuration of the shore; the nature, magnituder and periodicity of Shore District forces such as windr waves and currentst as they affect the Shore District; the origint nature and volume of materials composing the shoreline; the physical and biologic characteristics and the rate of Shore District change over time under both natural and proposed artificial. conditions. (2) With respect to probable effects of the proposed constructiont the applicant shall define a design wave (usually the mean height and period of the highest one-third (1/3) of the waves of a given wave 227 8-13.3 groupy including storm surge and tsunami), the design water level of the ocean, the foundation conditionsr and the construction materials, and shall state how the proposed design and construction operations will minimize disruption of the natural system. (3) With respect to assessing the quality of the proposed construction, the applicant shall describe alternatives to the proposed construction that were considered and why each was rejected, in terms of environmental quality and economic feasibility, including as one alternative the choice of no construction. (b) Before a permit may be granted, the applicant shall establish that the proposed alterationy construction or activity will not cause significant harm to: (1) The water quality of the ocean, including but not limited to its clarityr temperature, colorr taste and odor; (2) Fish and aquatic habitats; (3) The natural beauty of the area; (4) Navigation, safety or health; or (5) Would not substantially interfere with public use of the ocean waters or underlying lands; and (6) That other facilities are unavailable to the applicant. (c) Marinas and harbors shall not be permitted in the following locations: (1) Areas wherer due to the amount of unconsolidated materialsr wave and current energyr shoreline configuration, and other pertinent factorst beach erosion is likely to occur. (2) Unstable locations. (3) Areas designated by the Planning Commission as being of unique scenic beauty which should be retained in their natural condition. (4) Areas where there is no demonstrable public need for a new marina or harbor. (5) In areas so that the standards established in Section 8-13.3(b) are violated. (6) Use Districts where marinas and harbors are not permitted uses. (d) marinas and harborst when permitted, shall be located in the following areas unless the Planning Commission determines that the site would be inconsistent with the objectives of this Chapter or the applicant can demonstrate that such an area is unavailable and that the alternative site chosen will be consistent with the purposes of this Chapter. (1) In deeper water in order to minimize the need for dredging. (2) In natural inlets to avoid use of breakwaters. 223 8-13.3 (3) In an area designated for marinas and harbors on the General Plan. (e) Design and Construction Standards: (1) Floating piers or piers on pilings shall be used to provide access to boatsr rather than dredgingr whenever possible. (2) Where dredging is permittedr spoil material shall not be deposited in the water. (3) Where a barrier wall is required in connection with a marina, or harbor, it shall be carried deep enough below the bottom to prevent movement of back-fill materials into the water. (4) Materials used to stabilize the bottom of the marina or harbor for pier structures shall be chemically inert sandt gravel, or similar substances. (f) Shore Facilities. Restroomsr pump-out facilities for boat sewage receptaclest and trash receptacles for other boat wastes shall be provided at a marina or harbor. (g) Monitoring Information Requirements. The owner or operator of a marina or harbor may be required to furnish information concerning water qualityr current patterns and intensitiest shore alterations, and any other conditions which may be altered by the construction of the marina or harbor for a reasonable period after completion of the facility. (h) Location of Shoreline Protective Structures. To prevent local beach loss, shoreline protective structures shall be used.only where protection of the back-shore is of greater importance than beach preservation, or where less disruptive methods have failed. The following design and construction standards shall apply: (1) Sloping permeable revetments shall be used when barriers are permitted. (2) Seawalls and bulkheads shall be permitted only when the applicant is able to demonstrate that revetments are not feasible and that the alternative structure will cause no undue beach erosion. (3) Shoreline barriers shall not be constructed of unstable or soluble materials. U) There shall be no fill placed in the Shore District except at those locations where the fill is found to'be beneficial to existing water quality or Shore District conditions. (j) There shall be no dredging, removal or rearrangement of materials within the water or shore zone of the ocean. Dredging or excavation performed in the course of construction for which a permit has been approved under the terms of this Cha,'Pter shall be considered dredging or excavation for the purpose of this Article. (Ord. No. 164, August 17, 1972; Sec. 8-13.3p R.C.O. 1976) 229 8-13.4 -- 8-14.2 Sec. 8-13.4 Permits Required. I (a) A Class IV Zoning Permit is required for any constructionr developmentr use or activity proposed to be carried out within forty (40) feet of the upper reaches of the wash of waves other than storm or tidal wavesr or within the shoreline setback area as established by the State Land Use Commission pursuant to Chapter 205, H.R.S., whichever is the lesser. The Planning Commission shall issue a permit only if the requirements of both Chapter 205P H.R.S. and this Chapter have been met. (b) A Class III or Class IV Zoning Permit, depending upon the requirements established for the underlying Use District in which the proposed construction, development, use or activity is locatedr is required for undertakings in the Shore District established by this Chapter located landward of the shoreline setback area defined in Section 8- 13.4(a). The Planning Director or Planning Commission shall issue a permit only if the requirements of this Chapter have been met. (Ord. No. 164r August 17, 1972; Sec. 8-13.4t R.C.O. 1976) Sec. 8-13.5 Modification Of Requirements. The requirements of this Article shall not apply where the applicant demonstrates to the satisfaction of the Planning Director that the area in question should not have been included in the Shore District under the criteria established in Section 8-13.2. (Ord. No. 164, August 17F 1972; Sec. B-13.5, R.C.O. 1976) ARTICLE 14. SLOPE DISTRICTS (S-SL) Sec. 8-14.1 Purpose. (a) To insure public safety from earth slides and sl 0 To minimize erosion and attendant siltation of downstrea ters. (c) To i sure safety from downstream flooding due to altered runoff c cteristics. (d) To protect ologic functions such as ground water recharger wildlife a * tst and vegetative communities. (Ord. No. 164, August 17, 1 . Sec. 8-14.1, R.C.O. 1976) Sec. 8-14.2 Lands Included. All land areas in excess of twen slope (one (1) foot of rise or fall in fi e feet measured horizontally). (Ord. No. 164, August 17F 19 Sec. 8-14.21 R.C.O. 1976) ercent k v 230 I I I I I APPENDIX F I I SHORELINE SETBACK RULES & REGULATIONS I COUNTY OF KAUAI I I I I I I I I I I I SHORELINE SETBACK RULES AND ItEGULATTONS PIANNINC, VEPARTMrNT COUNTY OF KAUAI Section 1. Authority. Pursuant to authority conferred by Chapter 205, Hawaii Revised Statutes, as amended, by Section 2, Act 136, Session Laws of Hawaii 1970, the rules and regulations hereinafter contained are hereby established and shall apply to all lands along the shoreline within the County of Kaua.i, State of Hawaii. Section 2. Purpos e. Crowing population and expanding development have brought about numerous cases of encroachment of structures upon the shoreline. Many of these structures have di 6 turbed the natural shoreline processes and caused erosion of the shoreline. Con- crete masses along the shoreline are contrary to the policy for the preservation of the natural shoreline and the open space. Unrestricted removal of sand, coral, rocks, etc., for commercial uses can only deteriorate the shoreline and remove it from public use and enjoyment. Moreover, the-Hawaiian Islands are subject to tsunamis and high waves which endanger residential dwellings and other structures which are built too close to the shoreline. For these reasons, it is in the public interest to establish shoreline setbacks and to regulate the use and activities within the shoreline setbac ks. Section 3. Title. These rules and regulations shall be known as the "SHORELINE SETBACK RULES AND RECULATIONS OF THE COUNTY OF KAUAI." Section 4. Definitions. For the purpose of these rules and regulations, unless it is plainly evident from the context that a different meaning to intended. certain words and phrases used herein are defined as follows: a. "Agency" means the Planning Department of the County of Kauai. b. "Commission" shall mean the La6d Use Commission of the State of Hawaii. c. "Director" shall mean the Planning Director of the Planning Department, County of Kauai. d. "Land" shall include areas under water WiLhin the boundaries of-the State. e. "Line of debris" shall mean it line marking the landward limit of debris deposits resulting from wave uprush. f. "Nonconforming structure" shall mean any structure which was previously lawful and existing within the shoreline setback area prior to the effective date of Act 136, SM 1970, ol. any subsequent amendments made thereto. 9. "Nonconforming use" shall mean the use of a building or structure, or of a parcel of land, lawfully existing within the shoreline setback area pr ior to the effective date of Act 136, SUI 1970, or any subsequent amendments made thereto. h. "Owner" shall include lessees of real property. i. "Plan" shall mean a detailed construction drawing prepared to an appropriate scale, showing the design.of the proposed construction. The plan shall be based upon an accurate instrument survey and shall include data on the existing conditions,'includirkg property boundaries and topograp@y, in and around the proposed construction. J. "Planning Commission" shall mean the Planning Commission of the County of Kauai. k. "Revetment" shall mean a facing of stone, concrete, blocks, or other similar material built to protect a ecarp, embankment, or shore structure against erosion by wave action or currents. 1. "Shoreline" shall mean the upper reaches of the wash of waves, other than storm and tidal waves, usually evidenced by the edge of vegetative growth, the upper line of debris left by the wash of waves, established and struc- turally sound shoreline walls or structures or other visible marks such as the rocky shore, as most applicable in each case, which indicates the farthest extent to which the maximum annual wave advances inland. A shore- line shall not be established along berms, causeways, revetments, etc., which enclose fish ponds, marinas, pools, tidal basins, and similar facilities. M. "Shoreline setback" shall mean all of the land area between the shoreline and the shoreline setback line. .2- n, "Shoreline setback line" shall mean thaI*lIne establIsbcd by he State Land Use Commission or the County of Kauai running inland from and parallel to the shoreline at a horizontal plane. 0. "Structure" shall mean anything constructed or erected F.Ath a fixed location on the ground, or requiring a fixed location on the ground, or attached to something hav*ing or requiring a fixed'location on the ground. P. "Use." A use is: (1) any purpose for which a structure or a tract of land is designed, arranged, intended, maintained, or occupied; or (2) any activity, occupation, business, or operation carried on or intended to be carried on in any structure or on a tract of land. q. "Vegetative growth" shall mean any plant, tree, shrub, grass, or groups, clusters or patches of the same, rooted and growing. Section 5. Shoreline Setback Lines. Shoreline setback lines are established throughouti the County of Kauai at 40 feet inland from the upper reaches of the wash of waves other than storm and tidal waves, except that such shoreline setback lines shall be 20 feet inland on any land pa rcel of record when any one or more of the following exist: a'. Where the average depth of the parcel, as measured from the shoreline or the seaward boundary of the parcel, whichever is the lesser, is less than 100 feet. The average depth of the parcel shall be detemined by standard geometries of a rectilinear lot or by a combination of a series of recti- linear divisions of the total lot. The Director's finding relating to determination of the average depth shall be final. b. Where the parcel is less than one-ha If.(j) acre and where that parcel area to less than the minimum lot area required by the respective County zoning or subdivision ordinance applicable to said parcel. C. Where the buildable area of the parcel is reduced to less than 50 percent of the parcel area after applying the 40 foot shoreline setbac@ line and all State and County requirements wherein-thi parcel is located including .3- AN WP but not limited to front and side yard setbacks, crcss-slope requirements, and terrain requirements. Shoreline setbacks established at distance greater than that established by the Commission shall be administered and enforced under such county setback ordinances in conjunction with these rules and regulations. .Section 6. Establishment of the Shoreline. The actual field location of the shoreline in accordance with the definitions herein along with existing property lines shall be located and platted by in- strument surveys and the property corners or other appropriate reference mark be identified on the ground on the boundary fronting the sea by a land surveyor registered In accordance with Chapter 464, Hawaii Revised Statutes. Such survey maps developed by the registered land surveyor shall bear the surveyor's sig- nature and date of field survey and the confirming statement and s.ignature of the Chairman of the Board of Land and Natural Resources, State of Hawaii. The Chairman's signature shall be placed over the following co nfirming statement: "The shoreline as located and certified is hereby confirmed as being the actual sho@eline as of (date) .11 Shoreline setbacks shall be measured inland from the shoreline as determined and certified by the Registered Land Surveyor and as confirmed by the Chairman of the Board 'of Land and Natural Resources. Maps showing the location of a shoreline shall be based upon actual field surveys conducted by a registered land surveyor within six months prior to filing of an application for any construction or use relative to lands adjacent to and in- land of the shoreline under these rules and regulations. Where an application for governmental action Is withdrawn or held in abeyance at the request of the applicant or held in abeyance due to noncompliance with other provisions of these rules and regulations in order to complete the application, or if a de- cision is not rendered for just and*due cause by the Agency through its Director, the shoreline survey data shall be null and void after a period of one year from the date of the original field surve y. The applicant shall provide a map based on an updated survey and processing can proceed by the Agency only thereafter. -4- Section 7. Activities Subject to These Rules and Regulations. All proposed public and private construction or subdivision involving landswith- in the shoreline setback and all applications, therof for permits, reviews, approvals, and any other similar procedures for governmental review shall be subject to these rules and regulations. Such construction shall include but not be limited to work involved for repairs, remodeling, reconstruction, re- placement, or maintenance. Approval based upon compliance with these rules and regulations shall not relieve the applicant of the responsibility of compliance with all other applicable statutes, codes, ordinances, or rules and regulations. Section 8. Authority to Waive Field Surveys. Whenever in the opinion of the Director, the proposed construction as indicated by data submitted by the applicant is clearly and unmistakably located on shore- line properties at a considerable distance from the shoreline setback, he shall be vested with the authority to waive the requirement for instrument surveys by a registered land surveyor for the establishment of the shoreline and the con- firmation by the Chairman of the Board of Land and Natural Resources. In grant- ing such a waiver, he may require certification from the applicant that none of the proposed construction is intended for or will be constructed within the shoreline setback. Such certifications, if required, shall bear the sign and seal of notary public commissioned under the laws of the State of Hawaii. Section 9. Authority of the Agency Along Shorelines. All construction, improvements, grading, and such related activities within or immediately inland of the shoreline setback shall be subject to review and approval of the Agency under these rules and regulations. Such activity proposed for lands seaward of the shoreline shall not come under the jurisdiction of these rules and regulations. Where the jurisdiction of the Agency is limited for lands within the shoreline setback and with adjacent inland lands under the jurisdiction of other agencies, review by other agencies as well as this Agency shall be required. -5- Section 10. Prohibited Activities and Facilities within the ShoTeline Setback. a. The removal of sand, coral, rocks, soil, shells, or other beach compositions or natural plants and materials along the shorelines within the shoreline setback shall be prohibited. Such removal shall be prohLbited for any purpose except for reasonably domestic, noncommercial use which shall not involve construction, repairs, reconstruction, grading, or filling. Removal for reasonably domestic, noncommercial use shall not be made in any manner or to an extent that will change the basic topography or the physical appearance and configuration of the area. b. No structure or any portion thereof, including seawalls, groins, revetments, and other similar structures, whether built above, on, or below the ground surface, shall be permitted within the shoreline setback. Construction of facilities that are accessory or incidental to structures located in areas iz=ediately adjacent to the shoreline setback shall not be permitted. Roads, streets, driveways, walkw ays, utility li nes (whether overhead, sur- face, or underground), grading and filling work, and any and all other construction work not necessarily related to structures shall not be permitted within the shoreline setback. c. Any sand mining operation o.r portion thereof within the shoreline setback which has been legally in operation for a period of at least two years immediately prior to June 22, 1970, may be continued for a period not to extend beyond July 1, 1975. Continued operation during this period shall be contingent upon maintaining the scope of operations of June 22, 1970. Mining operations within th e shoreline setback that have substantially increased In scope from that of June 22, 1970, shall be unlawful and all operations within the shoreline setback shall be immediately and permanently discontinued. Section 11. Facilities Permitted wit hin the Shoreline Sethac$k. a. Special structures necessary for safety reasons or to protect property from erosion or wave damages shall be permitted upon compliance with all applicable -6- laws, ordinances, codes, and regulations and upun approval by the Director. The Director shall not approve the construction of such structures within the shoreline setback without the concurrence of the County Englneer of the Department of Public Works, County of 'Kauai. All such applications for approval by the Direcroi shall be accompanied by preliminary construction plans as well as a certificatl;,n report from a Marine Engineer or Ocean Engineer indicating that: (1) the structure is needed for safety reasons or to protect the property from erosion or wave damages, (2) the proposed construction is the besL alternative of several Investigated, and (3) the proposed construction will not cause any adverse effect or significant changes to the sh oreline. Upon approval of the pre- liminary construction plans, the applicant may proceed with final construction plans and documents for review and appro@al in accordance with applicable laws, ordinances, codes, and regulations. b. Any lawful nonconforming structure existing within the shoreline setback on June 22, 1970, shall be permitted. A structure not conforming to this Section but for which a building permit application or an appropriate permit application has been filed on or before June 22, 1970, shall also be per- mitted as a nonconfoming structure subject to the ordinances and regulations of the County of Kauai. Any nonconforming structure, driveway, roadway, or utility may be replaced, removed, or reconstructed upon compliance with applicable State and County requirements within the shoreline setback, provided that no such nonconform- ing structure or facility shall be substantially enlarged or changed to another nonconfoming use. If the use of any nonconfotmfng structures Is discontinued or held in abeyance for' a period of one year, the further continuation of such use shall be prohibited. c. No nonconforming use of land shall b6 enlarged or increased or extended to occupy a greater area of land than was occupied on June 22, 1970. No non- conforming use of land shall be moved in-whole or In part to any portion of the lot within the shoreline setback. -7- d. Upon the submittal of plans, data, and certification reports.by the applicant, and a public hearing conducted by the Agency, the construction.of tunnels, canals, basins, and ditches, together with associated structures used by public utilities, wharves, docks, piers, and other harbor and waterfront improvements and any other maritime facility and water sport recreational facilities may be permitted within the shoreline setback. The Agency may approve of such plans for such construction only upon the finding that the proposed structures will result in a minimum interference with natural shoreline processes.- Construction of facilities by a governmental body as indicated in the para- graph immediately preceding, shall be exempt from the provisions of this part. The gpvernmental body charged with the construction shall hold two public hearings as follows: (1) When the project is first conceived, and (2) When the project is substantially designed and planned, but prior to the letting of the'construction contract. Facilities indicated in Section 11(d), constructed on State land by the State shall be submitted for review and information of the Director. The Director shall make a finding as to whether or not the proposed construction as indicated on the plans i:. in conflict with any ordinances, zoning laws, and building code of the County of Kauai. The State shall not proceed with such construction without the certification by the Director that there are no conflicts. Section 12. Administration of These Rules and Regulations. a. The Agency, through its Director, shall review and approve or disapprove all plans submitted in accordance with the requirements of Sections 6.7, and 11. The Director may require additional plans or data-in.addition to those specified in these Sections. Changes in any plans or data submitted in order to obtain optimum compliance practicable to these rules and regulations and that are reasonable and necessary may be required by the Director. b. The Agency, through Its Director, shall receive and review plans for proposed structures, facilities, or activities that are p rohlbited within the shore- line setback upon the submission of adequate plans and data attached to a properly executed application form requesting a variance through the Planning Commission of the County of Kauai. The application shall be accom- panied by a'fee of one hundred dol lars ($100.00) to cover the cost of pub- lishing hearing notices. Certification by the owner or lessee of the property authorizing and condoning the application for a variance from these rules and regulations shall also be provided by the applicant or agent. Applications for a variance from these rules and regulations shall be accom- Panied by accurate written statements to substantiate that: (1) such structure, activity, or facility is in the public interest, or (2) hardship will be caused to the applicant if the proposed structure, activity, or facility is not allowed on that portion of the land within the shoreline setback. Upon receipt of a complete application, the Director shall solicit comments from other governmental agencies and submit his recommendations in writing to the Planning Commission along with copies of the application. Section 13. Action by Planning-Commission. Upon receipt of the application and the Director's recommendation, the Planning Commission shall decide on the matter according to the rules and regulations of the Planning Commission as It pertains to granting variances from the Zoning Ordinance. Section 14. Enforcement. The Director shall enforce the shoreline setbacks and these rules and regulations. Section 15. Penalties. Any p@erson who violates any provision for shor eline setbacks of these rules and regulations shall be fined not more than $500.00. The continuance of any such violation, shall be deemed a new offense for each day of such continuance. -9- Section 16. Validity. If any section or part of these rules and regulations is held to be invalid for. any reason whatsoever, such invalidity shall not affect the validity of the remaining sections or part of these rules and regulations. ADOPTED on the 22nd day of June 1971, by the PLANNING COMMISSION OF THE COUNTY OF KAUAI. PLANNING COMMISSION OF THE COUNTY OF KAUAI Its Chairman APPROVED AS TO FORM: Approved this 22nd day of June A,D. 1971. County Attorney, County of Kauai Mayor, County of Kauai Received this 22nd day of June A.D. 1971. County Clerk, County of Kauai -10- I I I I I APPENDIX G I I SHORELINE MANAGEMENT AREA (SMA) I RULES & REGULATIONS I COUNTY OF KAUAI I I I I I I I I I I I I I I I I I SPECIAL MANAGEMENT AREA I I I RULES AND REGULATIONS I I I OF THE COUNTY OF KAUAI I (As Amended) I I I I I I I I I TABLE OF CONTENTS Page Section 1.0 General Provisions . . . . . . . . . . . . I 1.1 Authority 1 1.2 Purpose 1 1.3 Title 1 1.4 Definitions 1 Section 2.0 Special Management Area . . . . . . . . . . 6 Section 3.0 Objectives and Policies of the Hawaii Coastal Zone Management Act . . . . . . . 6 Section 4.0 Special Management Area Guidelines . . . . 10 Section 5.0 Developments Proposed Within the SMA Subject to Review . . . . . . . . . . . 12 Section 6.0 Consultation . . . . . . . . . . . . . . . 12 Section 7.0 Assessment Procedures . . . . . . . . . . . 12 7.1 Filing 12 7.2 Assessment 13 7.3 Determination 13 7.4 Significant Adverse Effect Criteria 14 Section 8.0 Application Procedures . . . . . . . . . . 15 Section 9.0 Public Hearings . . . . . . . . . . . . . . 16 Section 10.0 Action . . . . . . . . . . . . . . . . . . 17 Section 11.0 Emergency Permits . . . . . . . . . . . . . 17 Section 12.0 Exemptions . . . . . . . . . . . . . . . . 18 Section 13.0 Penalties and Injunctions . . . . . . . . . 18 Section 14.0 Appeals . . . . . . . . . . . . . . . . . . 18 Section 15.0 Severability . . . . . . . . . . . . . . . 18 Section 16.0 Effective Date . . . . . . . . . . . . . . 19 Section 17.0 Petition for the Adoption, Amendment or Repeal of Special Management Area Rules and Regulations . . . . . . . . . . 19 Section 18.0 Amendment of Special Management Area (SMA) Maps . . . . . . . . . . . . . . . 20 Appendix History of Adoption and Amendments of SMA Rules and Regulations . . . . . . . . . 22 SPECIAL MANAGEMENT AREA RULES AND REGULATIONS OF THE COUNTY OF KAUAI Section 1.0 General Provisions 1.1 Authority Pursuant to authority conferred by Chapter 205A, Hawaii Revised Statutes, as amended by Acts 176, 188, 200, and 126, Session Laws of Hawaii 1975, 1977, 1979, and 1982, respectively, the rules and regulations hereinafter contained are hereby established and shall apply to all lands within the special management area of the County of Kauai. 1.2 Purpose It is the State policy to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawaii. Therefore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options, and to insure that adequate public access is provided to public-owned or used beaches, recreation areas, and natural reserves, by dedication or other means. 1.3 Tit I e These Rules and Regulations shall be known as the "Special Management Area Rules and Regulations of the County of Kauai-,' 1.4 Definitions For the purpose of these Rules and Regulations, unless it is plainly evident from the content that a different meaning is intended, certain words and phrases used herein are defined as follows: (These definitions are intended to clarify, not to replace nor to negate the definitions in Chapter 205A, HRS, as amended.) A. "Agency" means the Planning Department of the County of Kauai. B. "Applicant" includes any individual, partnership, firm, association, trust, estates, private corporation, or other legal entity, including any utility, and any department, commission, board, etc., of government. C. "Authority" means the Planning Commission of the County of Kauai. -1- D. "County Engineer" means the head of the Department of Public Works of the County of Kauai. E. "County" means the County of Kauai. F.- "Crops" means agricultural produce or part(s) of plant's or trees cultivated for commercial or personal use including, but not limited to, the raising of livestock. G. "Debris Line" means a line marking the landward limit of debris deposits, resulting from wave uprush. H. "Development" means any of the uses, activities, or operations on land; in or under water, within the special management area that are included below, but not those uses, activities, or operations excluded in paragraph (2):, (1) "Development" includes the following: (a) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal. waste ; (b) Grading, removing, dredging, mining, or extraci:ion of any materials; (c) Change in the density or. intensity of use of land, including but not limited to the division or subdivision of land; (d) Change in the intensity of use of wateri ecology related thereto, or of access theretio; and (e) Construction, reconstruction, demolition, or alteration of the size of any structure. (2) "Development" does not include the following: (a) Construction of a single-family residence that is not part of a larger development; (b) Repair or maintenance of roads and highways within. existing rights-of-ways; (c) Routine maintenance dredging of existing streams, channels, and drainage ways; (d) The repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor -2- appurtenant structures such as pad mounted transformers and sewer pump stations; (e) Zoning variances, except for height, density, parking, and shoreline setback; (f) Repair, maintenance, or interior alterations to existing structures; (g) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers; (h) The use of any land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture; (i) The transfer of title to land; (j) The creation or termination of easements, covenants, or other rights in structures or land; (k) The subdivision of land into lots greater than twenty acres in size; and U) The amendment of the County general plan, development plans, State land use district boundaries, and zoning changes. (3) Whenever the authority finds that any use, activity, or operation excluded in paragraph (2) is or may become part of a larger project, the cumulative impact of which may have a significant environmental or ecological effect on the Special Management Area, that use, activity, or operation shall be defined as "development" for the purpose of these rules and regulations. "Director" means the Planning Director or his autho- rized designee of the Planning Department, County of Kauai. J. "EIS" means an informational document prepared in compliance with Chapter 343, HRS, and the Environmental Quality Commission's Rules and Regulations, and which discloses the environmental effects of a proposed action, effects of a proposed action on the economic and social welfare of the community and State, effects -3- of economic activities arising out of the proposed action, measures proposed to minimize adverse effects and alternatives to the action and their environmental effects. K. "Estuary" means that part of a river or stream or other body of water having unimpaired connection with the open sea, where the sea water is measurably diluted with fresh water derived from land drainage. L . "Estuarine sanctuary" means a research area which may include any part or all of an estuary, adjoining transitional areas, and adjacent uplands, constituting to the extent feasible a natural unit, set aside to provide scientists and students the opportunity to examine over a period of time the ecological relationships within the area. M. "Owner" shall mean all equitable and legal holders or lessees of real property. Lessees shall present certification of approval from the legal owner. N. "Person" includes any individual, partnership, firm, association, trust, estate, private corporation, or other legal entity including any utility, and any department, commission, board, etc., of government. 0. "Shoreline" means the upper reaches of the wash of the waves, other than storm and tidal waves, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. P. "Shoreline Survey" shall mean the actual field location of the shoreline in accordance with the definition herein along with the existing property lines which shall be located and platted by instrument surveys and the property corners or appropriate references thereof along the shoreline be marked on the ground by a land surveyor registered in the State of Hawaii. Such survey maps developed by the registered land surveyor shall bear the surveyor's signature and date of field survey and the confirming signature of the Chairman of the Board of Land and Natural Resources. Q. "Single-Family Residence" means a detached building designed for and/or used as the complete facility for the cooking, sleeping and living area of a single family only and occupied by no more than one family, including uses normally considered accessory to the single family facilities provided that such uses are in compliance with all requirements of any County or State -4- regulations, statute or ordinance. A single family shall include all persons living in a dwelling related by blood, marriage or adoption or a group comprised of not more than five persons not @elated by blood, marriage or by adoption. For the purposes of these Rules and Regulations, a guest house shall not be considered an accessory use. R. "Special Management Area" means the land extending inland from the shoreline as delineated on the maps filed with the Authority as of June 8, 1977 or as amended pursuant to Section 20-1-A-23, HRS, and Section 18.0 of these Rules and Regulations. S. "Special Management Area Emergency Permit" means an action by the Director, pursuant to authority provided him by the Authority and defined in these Rules and Regulations, authorizing development in cases of emergency requiring immediate action to prevent substantial physical harm to persons or property. T. "Special Management Area Minor Permit" means an action by the Director, pursuant to authority provided him by the Authority and defined in these Rules and Regulations, authorizing development, the valuation of which is not in excess of $65.000 and which has no significant adverse environmentai or ecological effect, taking into account potential cumulative effects. U. "Special Management Area Use Permit" means an action by the Authority authorizing development, valuation of which exceeds $65,000 or which may have a significant adverse environmental or ecological effect, taking into account potential cumulative effects. V. "Structure" includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line. W. "Use." A use is: (1) Any purpose for which a structure or a tract of land is designed, arranged, intended, maintained, or occupied. (2) Any activity, occupation, business, or operation carried on or intended to be carried on in any structure or on a tract of land. -5- X. "Valuation" shall be determined by the Authority and means the estimated cost to replace the structure in kind, based on current replacement costs, or in the cases of other development, as defined in paragraph H. (1) above, the fair market value of the development. Y. "Vegetation line" means a line marking the seaward limit of natural terrestrial growth. Z. "Vegetation growth" means any plant, tree, shrub, grass, or groups, clusters or patches of the same naturally rooted and growing. Section 2. 0 Special Management Area Special Management Areas as delineated on the maps filed with the Authority and the office of the County Clerk as of June 8, 1977 or as amended pursuant to Section 205A-23, HRS, and Section 18.0 of these Rules and Regulations shall be the official special management areas to be administered and enforced under these Rules and Regulations. Section 3.0 Objectives and Policies of the Hawaii Coastal Zone Management Act The following are the objectives and policies of the State's Coastal Zone Management Act, as enumerated in Chapter 205A of the Hawaii Revised Statutes. A. Objectives (1) Provide coastal recreational opportunities accessible to the public; (2) Protect, preserve, and where desirable, restore those natural and man-made historic and pre-historic resources in the coastal zone management area that are significant in Hawaiian and American history and culture; (3) Protect, pi' -eserve, and where desirable, restore or improve thE! quality of coastal.scenic and open space resources; (4) Protect valuable coastal ecosystems from disruption and minimize adverse impacts on all coastal ecosystems; (5) Provide public or private facilities and improvements important to the State's economy in suitable locations; -6- (6) Reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, and subsidence; and (7) Improve the development review process, communication, and public participation in the management of coastal resources and hazards. B . Policies (1) Recreation Resources: (a) Improve coordination and funding of coastal recreation planning and management; and (b) Provide adequate, accessible, and diverse recreational opportunities in the coastal zone management area by: M Protecting coastal resources uniquely suited for recreation activities that cannot be provided in other areas; (ii) Requiring replacement of coastal resources having significant recreational value, including but not limited to surfing sites and sandy beaches, when such resources will be unavoidably damaged by development; or requiring reasonable monetary compensation to the State for recreation when replacement is not feasible or desirable; (iii) Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value; (iv) Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation; (v) Encouraging expanded public recreational use of County, State, and federally owned or controlled shoreline lands and waters having recreational value; -7- (vi) Adopting water quality standards and regulating point and non-point sources of pollution to protect and where feasible restore the recreational value of coastal waters; (vii) Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits, and crediting such dedication against the requirements of Section 46-6, HRS. (2) Historic Resources: (a) Identify and analyze significant archaeological resources; (b) MaximiZe information retention through preservation of remains and artifacts or salvage operations; and (c) Support State goals for protection, restoration, interpretation and display of historic resources. (3) Scenic and Open Space Resources (a) Identify valued scenic resources in the coastal zone management area; (b) Insure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline; (c) Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources; and (d) Encourage those developments which are not coastal dependent to locate in inland areas. (4) Coastal Ecosystems: (a) Improve the technical basis for natural resource management; (b) Preserve valuable coastal ecosystems of significant biological or economic importance; (c) Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; and (d) Promote water quantity and quality planning and management practices which reflect the tolerance of fresh water and marine ecosystems and prohibit land and water uses which violate State water quality standards. (5) Economic Uses: (a) Concentrate in appropriate areas the location of coastal dependent development necessary to the State's economy; (b) Insure that coastal dependent development such as harbors and ports, visitor facilities, and energy generating facilities are located, designed, and constructed to minimize adverse social, visual and environmental impacts in the coastal zone management area; and (c) Direct the location and expansion of coastal dependent developments to areas presently designated and used for such developments and permit reasonable long-term growth at such areas, and permit coastal dependent development outside of presently designated areas when: W Utilization of presently designated locations is not feasible; (ii) Adverse environmental effects are minimized; and (iii) Important to the State's economy; (6) Coastal Hazards: (a) Develop and communicate adequate information on storm wave, tsunami, flood, erosion, and subsidence hazard; (b) Control development in areas subject to storm wave, tsunami, flood, erosion, and subsidence hazard; -9- (c) Ensure that developments comply with requirements of the Federal Flood Insurance -Program; and (d) Prevent coastal flooding from inland projects. (7) managing Development: (a) Effectively utilize and implement existing law to the maximum extent possible in managing present and future coastal zone development; (b) Facilitate timely processing of application for development permits and resolve overlapping of conflicting permit requirements; and (c) Communicate the potential short and long-term impacts of proposed significant coastal developments early in their life-cycle and in term,s understandable to the general public to facilitate public participation in the planni@@ig and review process. Section 4.0 Special Management Area Guidelines The following guidelines shal 1 be used by the Xuthority for the review of developments proposed in the special management area: A. All development in the special management area shall be subject to reasonable terms and conditions set by the Authority to insure that: (1) Adequate access, by dedication or other means, to publicly owned or used beaches, recreation areas, and natural reserves is provided to the extent consistent with sound conservation principles; (2) Adequate and properly located public recreation areas and wildlife preserves are reserved; (3) Provisions are made for solid and liquid waste treatment, disposition, and management which will minimize adverse effects upon special management area resources; and (4) Alterations to existing land forms and vegetation except crops, and construction of structures shall cause minimum adverse effect to water resources and scenic and recreational amenities and minimum _10- danger of floods, landslides, erosion, siltation, or failure in the event of earthquake. B. No development shall be approved unless the Authority has first found that: (1) The development will not have any substantial, adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, and welfare, or compelling public interest. Such adverse effect shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and the elimination of planning options ; (2) The development is consistent with the objectives and policies, as enumerated in Chapter 205A, HRS, and as recited herein under Section 3.0, above; and special management area guidelines set forth in these Rules and Regulations. (3) The development is consistent with the County general plan, zoning, subdivision, and other applicable ordinances. C. The Authority shall seek to minimize, where reasonable,. (1) Dredging, filling or otherwise altering any bay, estuary, salt marsh, river mouth, slough, or lagoon. (2) Any development which would reduce the size of any beach or other area usable for public recreation. (3) Any development which would reduce or impose restrictions upon public access to tidal and submerged lands, beaches, portions of rivers and streams within the special management area and the mean high tide line where there is no beach. (4) Any development which would substantially interfere with or detract from the line of sight toward the sea from the State Highway nearest the coast, or from existing public views to and along the shoreline. (5) Any development which would adversely affect water quality, existing areas of open water free of visible structure, existing and potential fisheries and fishing grounds, wildlife habitats, estuarine sanctuaries, potential or existing agricultural uses of land. Section 5.0 Developments Proposed Within the Special Management Area Subject to Review Any use, activity, or operation proposed within the special management area, as defined as a "development" pursuant to Section 1.4 H, above, shall be subject to the review of the Agency and the Authority under these Rules and Regulations. Such review shall be pursuant to the objectives, policies and guidelines set forth in Sections 1.2, 3.0, and 4.0. Section 6.0 Consultation Any person contemplat ing development within the special management area may contact the Agency for procedures and general information that may have a direct influence on his proposed development. Any person who determines on his own that his proposed development is in excess of $65,000 or will have a significant adverse effect on the special management area may apply pursuant to Section 8.0 and waive the Assessment Procedures in Section 7.0. Otherwise, he shall be subject to-assessment. Section 7.0 Assessment Procedures 7.1 Filing Any person proposing a use, activity, or operation required to be subject to assessment shall be responsible for filing the following with the Agency: A. A tax map key description of the property on which the applicant proposes his project. B. A plot plan of the property, drawn to scale with all proposed structures shown thereon and any other information necessary to a property determination relative to the specific request. C. A written description of the proposed project and a statement of objectives. D. A statement of the valuation. E. An EIS if required under Chapter 343, HRS or when required by the Planning Agency. -12- F.. If required by the agency, a written description of the affected environment and a written statement evaluating the proposed development in relation to the objectives and policies of the State's Coastal Zone Management Act and the guidelines of the Special Management Area as provided herein. G. A shoreline survey when the parcel abuts the shoreline and when required by the Planning Agency. H. Any other relevant plans or information required by the Agency. 7.2 Assessment The Director shall assess the proposal upon 'the person's compliance with Section 7.1, based on the following criteria: A. The valuation of the proposal. B. The potential effects and the significance of each according to the Significant Adverse Effect Criteria established by Section 7.4. C. The nature of the development. 7.3 Determination The Director within thirty (30) calendar days after the receipt of all filing requirements or within a longer period as agreed to by the person, shall consider the proposal together with all accompanying data and shall issue a determination subject to considerations or alterations. The Director shall notify the person of his determination. A. Where the Director finds that the proposal: (1) is not a development, as defined in Section 1.4 H; or (2) is exempt by Section 12.0; he shall determine that the proposal is exempt from these Rules and Regulations. B. Where the Director finds that the proposal: (1) is a development, as defined in Section 1.4 H; and (2) is not in excess of $65,000; and (3) will not have a significant adverse effect on the special management area; -13- he shall issue a minor permit and may impose any reasonable terms and conditions deemed necessary to meet the objectives and policies enumerated in Section 3.0, and the guidelines, provided in Section 4.0. C. Where the Director finds that the proposal: (1) is a development, as defined in Section 1.4 H; and (2) is in excess of $65,000; or (3) may have a significant adverse effect on the special management area; he shall inform the person of the following: (a) the requirement of an application pursuant to Section 8.0; and (b) the public hearing requirements, pursuant to Section 9.0; and (c) The Au"thority's requirements for action, pursuant to Section 10.0; and (d) The area of critical concern to delineate the scope of information which the applicant must address. D. The Director shall file a quarterly report of his determinations in writing to the Authority. 7.4 Significant Adverse Effect Criteria In considering the significance of potential environmental effects, the Agency and Applicant shall consider the sum of those effects that adversely affect the quality of the environment, and shall evaluate the overall and cumulative adverse effects of the proposal. A "significant adverse effect" may vary with the individual setting and circumstances of particular proposals. Generally, however, any proposal which may have a major adverse effect on the quality of the environment or adversely affect the economic or social welfare of an area, or would possibly be contrary to the objectives, policies and guidelines of these Rules and Regulations, the County's General Plan, Development Plans, zoning and subdivision ordinances, policies and purposes, and to the State Plan, would' likely result in a "significant adverse effect." -14- In determining whether a proposal may have a significant adverse effect on the environment, the Agency shall consider every phase of a proposal and expected consequences, either primary or secondary, or the cumulative as well as the short or long-term effect of the proposal. The Agency should bear in mind that in most instances, the following factors of a proposal, although not limited to same, may constitute a significant adverse effect on the environment when the proposal: A. involves an irrevocable commitment to loss or destruction of any natural or cultural resources, including but not limited to, historic sites, Special Treatment Districts as established in the County Comprehensive Zoning Ordinance, viewplanes or scenic corridors as outlined in the Development Plans, and recreation areas and resources; B. curtails'the range of beneficial uses of the environment; C. conflicts with the County's or the State's long-term environmental policies or goals; D. substantially affects the economic or social welfare and activities of the community, County or State; E. involves substantial secondary impacts,-such as population changes and effects on public facilities; F. in itself has no significant adverse effect but cumulatively has considerable effect upon the environment or involves a commitment for larger actions; G. substantially affects a rare, threatened, or endangered species of animal or plant, or its habitat; H. detrimentally affects air or water quality or ambient noise levels; or I. Affects an environmentally sensitive area, such as flood plain, shoreline, tsunami zone, erosion-prone area, geologically hazardous land, estuary, fresh water or coastal water. Section 8.0 Application Procedure Any person who has received a determination under Section 7.3 that his proposal is neither exempt, nor that it conforms to the requirements for a minor permit, or any person who has determined on his own that his proposal is in excess of $65,000 or will have a significant adverse effect, shall apply for a special management area use permit. -15- The applicant shall be responsible for submitting a completed form provided by the Agency. Such form shall be accompanied by: A. In the case of applicants whose proposals have not been assessed, all informational requirements of Section 7.1. B. In the case of applicants whose proposals have been assessed, any information as to the areas of critical concern delineated by the Director. C. A $150 filing and processing fee; provided, however, that if applications for other permits which require public hearings to be conducted by the Authority are filed for the same development, and if public hearings for the permit applications are to be held simultaneously, only one filing fee of $150 will be required. Upon compliance with the foregoing procedures, the Director shall notify the applicant by mail that this application has been accepted. Section 9.0 Public Hearinas A publi.c.hearing shall be set no less than twenty-one (21) nor more than sixty (60) calendar days after the date on which the application is accepted, unless the sixty-day (60) period is waived by the applicant. Immediately upon the Authority's fixing a day for the put-lic hearing, the applicant shall mail a notice setting forth the time and place of the hearing to not less than two-thirds of the persons being the owners or lessees holding under recorded leases, of real estate situated within a distance of three hundred feet from the nearest point of the premises involved in the application to the nearest point of such real estate, and tc persons who have requested in writing to be notified of special management area use permit hearings, not less than fifteen (15) days prior to the date set for the hearing; and before the hearing the applicant shall file with the Commission an affidavit as to such mailing of notice. Notice by mail may be addressed to the last known address of the person concerned. _In addition, for each condominium project within the affected area, one notice of the hearing shall be sent by mail addressed "To the Residents, Care of the Manager," followed by the name and address of the condominium .involved. The Agency shall give written notice once in a newspaper of general circulation in the State, at least twenty (20) calendar days prior to the public hearing. The notice shall state the nature of the proposed development for which a permit application is maide and of the time and place of the public hearing. -16- Any such hearing shall, whenever possible, be held jointly and concurrently with an environmental impact statement hearing, if such hearing is held under Chapter 343, HRS, and with any zoning, use and variance permits as may be required under t he provisions of the County Comprehensive Zoning Ordinance. Section 10.0 Action The Authority shall act upon an application within sixty (60) calendar days after the conclusion of the hearing, except in the case of emergency and minor permits, or in cases where the Authority requires further information or finds that the issues require further clarification, or where an extension has been agreed to by the applicant. Such action shall be final, unless otherwise mandated by court order when a judicial review is sought, pursuant to Chapter 91, HRS. When a minor or special management' area use permit application is denied, an application involving the same or substantially the same development may not be filed sooner than one (1) year following such denial. The duration of any validly issued minor or special management area use permit shall be two (2) years unless otherwise specified. No development shall be allowed within the special management area without first obtaining a permit pursuant to these Rules and Regulations. No County department or State agency authorized to issue permits pertaining to any development within the special Tanagement area shall authorize any development unless approval is first received from the Authority in accordance with the procedures adopted pursuant to these Rules and Regulations. For the purposes of this Section, County General Plan, State land use district boundary amendments, and zoning changes are not permits for development. Section 11.0 Emergency Permits In case of emergency repairs to existing public utilities including, but not limited to water, gas, and electric transmission lines and highways, the respective governmental department or public utility company is waived from obtaining a permit pursuant to these Rules and Regulations. Such repair shall be recorded with the Authority upon its completion. In cases of imminent substantial harm to public health, safety, or welfare in the County of Kauai, the Mayor or Director may waive the requirements of obtaining a permit pursuant to these -17- Rules and Regulations. In the event of State-declared emergencies, the Governor, upon conferral and recommendation from the Mayor, may waiVE! the requirements pursuant to these Rules and Regulations. Section 12.0 Exemptions These Rules and Regulations shall not apply to developments or structures for which a building permit, planned development permit, planned unit development permit or ordinance or special permit for cluster development was issued prior to December 1, 1975, or to subdivisions of property into single-family residential lots of one acre or less which have received final approval and on which subdivision improvements including but not limited to, grading, utilities, roads, street lighting and all required'on-site and off-site improvements have been completed prior to December 1, 1975. Section 13.0 Penalties and Injunctions A. Any person who violates any provision of these Rules and Regulations shall be subject to civil fine not to exceed $10,000. in addition to any other penalties, any person who performs any development in violation of this part shall be subject to civil fine not to exceed $500 a day for each day in which such violation persists. B. Any person violating any provision of these Rules and Regulations may be enjoined,by the Circuit Court of the State by mandatory or restraining order necessary or proper to effectuate the purposes of these Rules and Regulations in a suit brought by the Agency. Section 14.0 Appeals Any person including an applicant for a permit, aggrieved by the decision or action of the Authority shall have the right to judicial review of any decision or action of the Authority, pursuant to Chapter 91 of the Hawaii Revised Statutes. Section 15.0 Severability If any provision of these Rules and Regulations or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of these Rules and Regulations which can be given effect without -the invalid provision or application, and to this end the provisions of.these Rules and Regulations are severable. -18- Section 16.0 Effective Date These Rules and Regulations shall take effect on December 1, 1975. Any amendments to these Rules and Regulations, duly approved, shall take effect upon the date of such approval. Section 17.0 Petition for the Adoption, Amendment or Repeal of Special Management Area Rules and Regulations A. Petition Any interested person may petition the Authority requesting the adoption, amendments or repeal of any provision of these Rules and Regulations. B. Submission Sixteen (16) sets of the petition shall be submitted on a form prescribed by the Agency. Said petition shall be submitted to the Agency and shall include the following: (1) A statement of the nature of the petitioner's interest. (2) A draft or the substance of the proposed rule or amendment or a designation of the provisions sought to be repealed. (3) An explicit statement of the reasons in support of the proposed rule, amendment or repeal. Said reasons shall discuss the relationship of the proposed change with the Environmental Shoreline Protecton Law, Chapter 205 HRS, and other applicable State or County ordinances or regulations. (4) A filing fee of $150 if a public hearing is scheduled. C. Disposition of Petition (1) The Authority shall within forty-five (45) days after acceptance of the petition either deny the petition in writing, stating its reasons for such denial, or schedule a public hearing on the petition to be held no earlier than thirty (30) days but no later than ninety (90) days after the acceptance of the petition. The Authority shall give written notice once in a newspaper of genera: _19- circulation in the State, at least twenty (20) days prior to this hearing. The notice shall state the nature of the petition and the time and place of the public hearing. (2) The Authority shall take action on the petition no earlier than fifteen (15) but no later than ninety (90) days after the final public hearing. D. Retroactivity of Amendments Additional procedural or substantive requirements imposed by amendments to these Rules and Regulations shall not be retroactively applied to developments for which a valid special management area use, minor or emergency permit has been issued, unless expressly provided in the amendment. Section 18.0 Amendment of Special Management Area (SMA) Maps A. All cha nges for boundary amendments to the SMA maps shall be initiated by the Director. B. Procedure A change in the boundary of the SMA maps may be requested by any of the following: (1) Any department or agency of the State or County. (2) Any owner or lessee of the affected land. (3) County Council. C. Submission (1) Sixteen (16:1 sets of the request shall be submitted on a form prescribed by the Agency and shall be accompanied by: (a) A filing and processing fee of $150. I (b) A description of the property in sufficient detail to determine its precise location. (c) An explicit statement of the reasons in support of the proposed amendment. Said reasons shall also discuss the relationship of the proposed change with the policies and objectives of the regulations and the County General Plan. -20- (2) The Authority shall hold a public hearing no earlier than thirty (30) but no later than ninety (90) calendar days upon receipt of a properly-filed application. The Authority shall give written notice once in a newspaper of general circulation in the County and once in a newspaper of general circulation in the State, at least twenty (20) calendar days in advance of the public hearing. The notice shall state the nature of the petition, its specific location, and the time and place of the public hearing. (3) The Authority shall no earlier than fifteen (15) but within ninety (90) calendar days after the public hearing, deny or approve the request in writing, stating the reasons for such action. D. Exemption of Previ ously Approved Developments Any development which was issued an appropriate zoning, use, project development or building permit, or received preliminary subdivision approval before the adoption and approval by the mayor of these amendments to the special management area boundaries whicti.result in the inclusion of the development within the.special management area, is not subject to special management area permit requirements. The pertinent permit or approval, however, must be unexpired. For a permit or an approval which was issued without expiration date or duration period, the exemption provided herein shall lapse two years from the date of approval of the boundary amendment by the mayor unless otherwise extended. -21- APPENDIX Approval and Adoption: 'The Planning Commission of the County of Kauai, State of Hawaii, approved ana adopted these rules on December 12, 1979. The Mayor of the County of Kauai approved these rules on December 17, 1979. The rules were filed in the Office of the Clerk of the County of Kauai on December 17, 1979 Amendment: The Planning Commission of the County of Kauai, State of Hawaii, approved and adopted an amendment to "Section 10.0 Action" on January 14, 1981. The Mayor of the County of Kauai approved the amendment on January 16, 1981. The amendment was filed in the Office of the Clerk of the County of Kauai.on January 16, 1981. Amendment: The Planning Commission of the County of Kauai, State o-F-Hawaii, approved and adopted amendments to "Section 1.1 Authority", "Section 1.4 'Definitions, paragraphs T., V., X., Y. and Z.11, "'Section 6.0 Consultation"I "Section 7.1 Filing, paragraph D.`I, "Section 7.2 Assessment, paragraph A.", "Section 7.3 Determination, paragraph B.(2) and C.(2)" and "Section 8.0 Appli ation rocedure" on August.24,-1983. The Mayor of the County of Kauai approved the amendments on August 26, 1983. The amendments were filed in the. Offiqe-of the Clerk of the County of Kauai on August 29, 1983. -22- AN AMENDMENT TO THE SPECIAL MANAGEMENT AREA RULES AND REGULATIONS OF THE.COUNTY OF KAUAI (As Amended) The Planning Commission of the County of Kauai hereby amends the Special Management Area Rules and Regulations as follows: SECTION 1: Section 1.1 of the SMA Rules and Regulations entitled Authority is amended to read as follows: I'l.1 Authority Pursuant to authority conferred by Chapter 205A, Hawaii Revised Statutes, as amended by Acts 176, 188, 200, (and] 126, and 113, Session Laws of Hawaii 1975, 1977, 1979, [and] 1982, and 1984, respectively, the rules and regulations hereinafter contained are hereby established and shall apply to all lands within the special management area of the County of Kauai-" SECTION 2: Section 1.4 of the SMA Rules and Regulations entitled Definitions is amended by adding four new sub-paragraphs to definition 11H. (2)" to read as follows: 11H. "Development" means any of the uses, activities,*or operations on land; in or under water, within the special management area that are included below, but not those uses, activities, or operations excluded in paragraph (2): (1) "Development" includes the following: (a) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (b) Grading, removing, dredging, mining, or extraction of any materials; (c) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (d) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (e) Construction, reconstruction, demolition, or alteration of the size of any structure. (2) "Development" does not include the following: (a) Construction of a single-family residence that is not part of a larger development; (b) Repair or maintenance of roads and highways within existing rights-of-ways; (c) Routine maintenance dredging of existing st'reams, channels, and drainage ways; (d) The repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor alopurtenant structures such as pad mounted transformers and sewer pump stations; (e) Zoning variances, except for height, density, parking, and shoreline setback; (f) Repair, maintenance, or interior alterations to existing structures; (g) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers; (h) The use of any land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other Sgricultural, horticultural, or forestry Products or animal husbandry, or aquaculture; (i) The transfer of title to land; .(j) The creation or termination of easements, covenants, or other rights in structures or land; (k) The subdivision of land into lqts greater than i:wenty acres in size; [and] (1) The subdivision of a parcel of land into four 1).r fewer parcels when no associated construction activities are proposed, provided that any such ,land which is so subdivided shall not 'thereafter qualify for this exception with Sespect to any subsequent subdivision of any.of .the resulting parcels; (m) Installation of underground utility lines and .appurtenant aboveground fixtures less than four feet in height along existing corridors; (n) Structural and non-structural improvements to existing i-ngle-family residences includiM_ -2- additional dwelling unit, where otherwise permissible; (o) Non-structural imorovements to existing commercial structures; and C(l)] (p) The amendment of the County general plan, development plans, State land use district boundaries, and zoning changes." SECTION 3. Section 1.4 of the SMA Rules and Regulations entitled Definitions is amended by amending definitions 'IS", IIUII, and IIXII to read as follows: 'IS. "Special Management Area Emergency Permit" means an action by the Director, pursuant to authority provided him by the Authority and defined in these Rules and Regulations, authorizing development in cases of emergency requiring immediate action to prevent substantial physical harm to persons or propertyC.j or to allow the reconstruction of structures damaged by natural hazards to their original form, proviced that such structures were previously found to be in comDliance with reculrements of the Federal Flood Insurance Prooram." 11U. "Special Management Area Use Permit" means an action by the Authority authorizing development, the valuation of which exceeds $65,000 or which may have a significant adverse environmental or ecological effect, taking into account potential cumulative effects." IIX. "Valuation" shall be determined by the Authority and means the estimated cost to replace the structure in kind, based on current replacement costs, or in the cases of other development, as defined [in paragraph H. (1)] above, the fair market value of the development-" SECTION 4: Section 4 of the SMA Rules and Regulations entitled Special Management Area Guidelines is amended by amending subsection "B" to read as follows: 'IS. No development shall be approved unless the Authority has first found that: (1) The development will not have any substantial, adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, and welfare, or compelling public interest. Such adverse effect shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and the elimination of planning options; -3- (2) The development is consistent with the objectives and policies, as enumerated in Chapter 205A, HRS, and as recited herein under Section 3.0, above; and special management area guidelines set forth in these Rules and Regulations[.]; and (3) The development is consistent with the County al plan[,] and zoning[, subdivision, and other gener, applicable] ordinances. Such a finding of consistency does not preclude concurrent processing where a gener I plan or zoning amendment may also be requiced." SECTION 5: New material is underscored. Material to be deleted is bracketed. Any reprint of the rules and regulations, as amended need not include the brackets, bracketed material and underscoring. Furthermore, the authority charged with the reprinting of 11"L-he rules and regulations is authorized to correct any obvious nonsubstantive grammatical errors where deemed necessa:ry. SECTION 6: The amendment shall take effect upon its approval. The Planning Commission of the County of Kauai, State of Hawaii, approved and adooted the foregoing amendments to the SMA Rules-and, Regulations an this 12th day of December, 1984 PLANNING COMMISSION COUNTY OF KAUAI CHAIRMAN Notice of Public Hearings: THE GARDEN ISLAND - County of Kauai Date: 10/22/84 HONOLULU STAR-BULLETIN - State of Hawaii Date: 10/22/84 APPROVED AS TO FORM: DEPUTY VOUNk ATTORNEY Date: IN96 Al-A -4- APPROVED: MAYOR, COUNTY OF KAUAI Date: Dec. 18, 1984 I hereby certify that the foregoing rules were received and filed in my office this 19th day of December, A.D. 1984. COUNTY CLERK -5- AN AMENDMENT TO THE SPECIAL MANAGEMENT AREA RULES AND REGULATIONS OF THE COUNTY OF KAUAI (As Amended) The Planning Commission of the County of Kauai hereby amends the Special Management Area Rules and Regulations as follows: SECTION 1: Section 1.1 of the SMA Rules and Regulations entitled Authority is amended to read as follows: "Ll Authority Pursuant to authority conferred by Chapter 205A, Hawaii Revised Statutes, as amended by Acts 176, 188, 200, [and] 126, and 113, Session Laws of Hawaii 1975, 1977, 1979, [and] 1982, and 1984, respectively, the rules and regulations hereinafter contained are hereby established and shall apply to all lands within the special management area of the County of Kauai." SECTION 2: Section 1.4 of the SMA Rules and Regulations entitled Definitions is amended by adding four new sub-paragraphs to definition 11H. (2)" to read as follows: "H. "Development" means any of the uses, activities, or operations on land; in or under water, within the special management area that are included below, but not those uses, activities, or operations excluded in paragraph (2): (1) "Development" includes the following: (a) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (b) Grading, removing, dredging, mining, or extraction of any materials; (c) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (d) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (e) Construction, reconstruction, demolition, or alteration of the size of any structure. (2) "Development" does not include the following: (a) Construction of a single-family residence that is not part of a larger development; (b) Repair or maintenance of roads and highways within existing rights-of-ways; (c) Routine maintenance dredging of existing streams, channels, and drainage ways; (d) The repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; (e) Zoning variances, except for height, density, parking, and shoreline setback; (f) Repair, maintenance, or interior alterations to existing structures; (g) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers; (h) The use of any land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture; U) The transfer of title to land; Q) The creation or termination of easements, covenants, or other rights in structures or land; (k) The subdivision of land into lots greater than twenty acres in size; (and] (1) The subdivision of a parcel of land,into-four. or fewer parcels when no associated construction activities are proposed, provided that any such land which is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels; (m) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors; (n) Structural and non-structural improvements to existing single-family residences including -2- additional dwelling unit, where otherwise permissible; (o) Non-structural improvements to existing commercial structures; and C(l)] (p) The amendment of the County general plan, development plans, State land use district boundaries, and zoning changes." SECTION 3. Section 1.4 of the SMA Rules and Regulations entitled Definitions is amended by amending definitions 'IS", fluff, and IIXII to read as follows: 'IS. "Special Management Area Emergency Permit" means an action by the Director, pursuant to authority provided him by the Authority and defined in these Rules and Regulations, authorizing development in cases of emergency requiring immediate action to prevent substantial physical harm to persons or property[.] or to allow the reconstruction of structures damaged by natural hazards to their original form, provided that such structures were previously found to be in compliance with requirements of the Federal Flood Insurance Program." "U. "Special Management Area Use Permit" means an action by the Authority authorizing development, the valuation of which exceeds $65,000 or which may have a significant adverse environmental or ecological effect, taking into account potential cumulative effects." IIX. "Valuation" shall be determined by the Authority and means the estimated cost to replace the structure in kind, based on current replacement costs, or in the cases of other development, as defined [in paragraph H. (1)] above, the fair market value of the development." SECTION 4: Section 4 of the SMA Rules and Regulations entitled Special Management Area Guidelines is amended by amending subsection 11611 to read as follows: "B. No development shall be approved unless the Authority'has first found that: (1) The development will not have any substantial, adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and clearly outweighed by public healtho safety, and welfare, or compelling public interest. Such adverse effect shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect and the elimination of planning options; -3- (2) The development is consistent with the objectives and policies, as enumerated in Chapter 205A, HRS, and as recited herein under Section 3.0, above; and special management area guidelines set forth in theSE! Rules and Regulations[.]; and (3) The development is consistent with the County general plan[,] Lnd zoning[, subdivision, and other applicable] ordinances. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be SECTION 5: New material is underscored. Material to be deleted is bracketed. Any reprint of the rules and regulations, as amended need riot include the brackets, bracketed material and underscoring. Furthermore, the authority charged with the reprinting of the rules and regulations is authorized to correct any obvious nonsubstantive grammatical errors where deemed necessary. SECTION 6: The amendment shall take effect upon its approval. The Planning Commission of the County of Kauai, State of Hawaii, approved .and adooted the foregoing aMndments to the SMA Rules and Regulations on this 12th day of December, 1984 COUNTY OF KAUAI PLANNING COMMISSION CHAIRMAN Notice of Public Hearings: THE GARDEN ISLAND - County of Kauai Date: 10/22/84 HONOLULU STAR-BULLETIN State of Hawaii Date: 10/22/84 APPROVED AS TO FORM: A DEPUTY VOUNk ATIORNEY Date: -4- APPROVED: MAYOR, COUNTY OF KAUAI Date: Dec. 18, 1984 I hereby certify that the foregoing rules were received and filed in my office this 19th day of December A.D. 1984. COUNTY CLERK -5- I I I I I I APPENDIX H I I FLORIDA'S BEACH AND COAST I PRESERVATION PROGRAM I (EXCERPTED MATERIAL) I I I I I I I I I I SPEC 88-2 FLORIDA'S BEACH AND COAST PRESERVATION PROGRAM: AN OVERVIEW by James H. Balsillie Beaches and Shores Special Report No. 88-2 February 1988 'DIE PA R RES Analysis /Research Section Bureau of Coastal Data Acquisition Division of Beaches and Shores Florida Department of Natural Resources FLORIDA'S BEACH AND COAST PRESERVATION PROGRAM: AN OVERVIEW by James H. Balsillie Analysis/Research Section, Bureau of Coastal Data Acquisition, Division of Beaches and Shores, Florida Department of Natural Resources, 3900 Commonwealth Blvd., Tallahassee, FL 32399-3000. ABSTRACT The purpose of this document is to provide a general description of the mission of the Florida Department of Natural Resources, Division of Beaches Shores. The paper is organized about program elements (e.!g.,.control..line establishment, permit- ting, etc'.-) rather .. tKa-n by organizational units (e.g., bureaus, offices, sections); organizational units are, however, related to program element responsibilities. The table of contents provides a convenient guide to major program responsibilities. INTRODUCTION In 1970, the Legislature of the State of Florida made the following statements, The attraction of Florida's beautiful beaches and shores account for a substantial portion of the states annual tourist trade; . Beach and shore erosion is a serious menace to the economy and general welfare of the people of this state; Unguided development of these beac hes and shores coupled with uncontrolled erosive forces are destroying or substantially damaging many of our valuable beaches each year; Preservation of our beaches and shores is therefore a subject of great public interest and concern which requires appropriate action by the Legislature to prevent further loss to one of our greatest natural resources; The greater public interest compels that certain reasonable restrictions be placed upon the location of coastal construction and excavation even though such construction or excavation be located on privately held land. The legislature then passed into law the Beach and Shore Preservation Act (Chapter 161, Florida Statutes), charging the Florida Department of Natural Resources (through the Division of Beaches and Shores) with the responsibility of its administration. The early history of the program (from about 1971 to 1974) has been chronicled by Purpura (1972) and Purpura and Sensabaugh (1974). Through the years, however, the program of beach and coast preservation has reached a level of significant specialization with regard to technical issues quantifying natural processes, as well as a broadened program format. Presently, major program elements include the establishment V of regulatory jurisdictions, construction regulation and enforcement activities, -technical aspects related to the preceding, and a funding mechanism for public civil works type projects (a generalized flow chart showing how the Division of Beaches and Shores is organized is given in Figure 1 for future reference). It is the purpose of this document to provide an overview of these program elements. CONTROL LINE PROGRAM The establishment of Coastal Construction Control Lines (CCCL s) is administered by the Bureau of Coastal Data Acquisition. Such establishment is required pursuant to section 161.053, F. S., which in part reads: The legislature finds and declares that the beaches of the state, by their nature, are subject to frequent. and severe fluctuations and represent one of Florida's most valuable natural resources and that it is in the public interest to preserve and protect them from imprudent construction which can jepardize the the stability of the beach-dune system, accelerate erosion', provide inadequate protection to upland structures, and endanger adjacent property and the beach-dune system. in furtherance of these findings, it is the intent of the Legislature to provide that the department, acting through the division, shall establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean and the Gulf of Mexico. Such lines shall be estblished so as to define that 2 portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge of other predictable weather conditions, and so as to define the area within which special structural design consideration is required to insure protection of the beach-dune system, any proposed structure, and adjacent properties, rather than to define a seaward limit for upland structures. It is to be noted that the "Big Bend" counties (i.e., Wakulla through Pasco, inclusive) and Monroe County, because they are not considered sandy-beach counties, do not have CCCL s. Currently, all counties within program jurisdiction have setback or control lines established, and second review phase is in progress. Establishment of CCCLs on a county-by-county basis requires three significant efforts: 1. field data collection, 2. storm tide and dune erosion modeling, and 3. CCCL restudy and adoption. Field Data Collection The basis of the field data collection effort conducted by the Bureau of Coastal Data Acquisition is the maintenance of DNR reference monuments installed at 1000-foot alongshore intervals upland of Florida's ocean-fronting beaches (Penquite, Bean and Balsillie, 1983). These monuments are referenced to a system of massive monuments located further inland (the latter to serve as a backup system for reference monument recovery and to enhance surveying control); both are tied into the state plane coordinate system. As a part of a control line study, profiles are measured at each reference monument. Beach profiles extend from behind the dunes into the surf; special features such as the vegeta- tion line and existing structures such as seawalls are noted and recorded. Offshore profiles are surveyed at every third reference monument, extending from the surf to about 3000 feet offshore to water depths of from 25 to 30 feet. Details of field measurement equipment and methods used are discussed by Sensabaugh, Balsillie, and Bean (1977); adequacy of the offshore surveying methodology is given by Balsillie (1987). To date over 9,800 beach profiles and over 2,300 offshore profiles have been measured (see Table). In addition to control line surveys, periodic condition surveys and post-storm surveys are also conducted. The pre- and post-storm and hurricane data base is one the most comprehensive in existance. 4 Data obtained from this effort are stored in the Beaches and Shores computerized profile data base. Data so managed remains immediately available for a variety of task-oriented applied coastal engineering purposes. Controlled, stereoscopic aerial photography is flown for each control line study. It is reproduced to provide detailed working photomap formats at a scale of 1 inch = 100 feet. DNR reference monuments (targetted prior to photo flights) are plotted on the photomaps, as are photogrammetrically generated contours (2-foot contour interval) delineating beach and dune details. Storm Tide and Dune Erosion Modeling In 1978 the Legislature modified chapter 161, F. S., to place greater emphasis on the storm tide accompanying the design hurricane event in order to determine the location of CCCLs. The task was contracted to outside expertise at the Beaches and Shores Resource Center, Institute of Science and Public Affairs, Florida State University, which uses the storm tide model of Dr. Robert G. Dean. The model is used to determine the "combined total storm tide" defined (e.g., Dean, Chiu, and Wang, 1987) as the storm tide due to astronomical tide, wind.stress and barometric pressure effects combined with the dynamic wave set-up. The results provide valid estimates of the storm tide for return periods of 10, 50, 100, 200, and 500 years. As of the date of preparation of this paper, 15 counties have been studied out of a total of 24 coastal counties under program jurisdiction (Figure 2). Return period storm tide levels for the Florida east coast are plotted in Figure 3, for the lower gulf coast in Figure 4, and for the northwest pa@lllhandle coast in Figure 5. Combined storm tide and CCCL studies on a county basis are listed in the references. In addition to water levels and wave heights, it is desirable to know of dune/bluff erosion expected from design storm impact. The staff of the Beaches and Shores Resource Center utilize beach/coast erosion computer modeling programs to realize this goal. An example of a dune erosion prediction for a 100-year return storm tide event is given in Figure 6. Results from these numerical models can be realized only only through the use of a computer processor with scientific capability. In.narticular, the storm tide model, requires massive cc'mputer processor resources due to both large arrays of information and iterative computations involved. 7 Control Line Adoption and Restudy Following consideration of the collected field data, storm tide results, historical and predicted erosion trends, existing upland development, etc., the contracted expertise of the Beaches and Shores Resource Center recommends to the Department location(s) of the CCCL for a given county under study (see Chiu and Dean, 1984). Upon review by the Department, Florida law (subsection 161.053 (2), Florida Statutes) requires: No such line shall be set until a public hearing has been held for each area involved. After giving consideration to the results of said public hearing, it shall, set and establish a coastal construction line and cause same to be duly recorded in the public records of any county and municipality affected and shall furnish the clerk of the circuit court in each county affected a survey of such line with references at such intervals and locations as may be considered necessary. The impression is often given that the CCCL for a given county is a straight line or relatively small number of lines when, in fact, a CCCL has many linear segments commonly changing direction at each DNR reference monument, and may even change direction between monuments. For this reason, the Field Surveying Section of the Bureau of Coastal Data Acquisition is involved with maintaining precise surveying control of the CCCLs with reference monuments, massive monuments, and the state plane coordinate system. Restudy of CCCLs is at the discretion of the Department or may be initiated at the request of officials of affected counties or municipalities. The Department may after consideration of hydrographic and topographic data which indicates shoreline changes that render established lines to be ineffective,.authorize a review. Based upon the time required and computer resources available, the Division schedules the review of about 5 counties per year. The @cheduling is flexible, however, since storm or hurricane impact or other erosion trends, or litigation related to the hearing and CCCL-establishment process can cause delays. THIRTY-YEAR EROSION PROJECTION PROGRAM Legislation, enacted in 1985, entitled the Growth Management Amendment (GMA) subject to provisions of subsection 161.053(6), Florida Statutes, requires that in addition to extreme event impacts of above, that long-term shoreline change trends be employed to regulate coastal 13 development activities. The law states.- After October 1, 1985, and notwithstanding any other provision of this part, the department, or a local government to which the department has delegated permitting authority pursuant to subsections (4) and (15), shall not issue any permit for any structure, other than a coastal or shore protection structure, minor structure, or pier, meeting the requirements of this part, or other than intake: and discharge structures for a facility sited pursuant to part II of chapter 403, which is proposed for a location which, based on the department's projections of erosion in the area, will be! seaward of the seasonal high-water line within 30 years after the date of application for such permit. The procedures for determining SUC171 erosion shall be established by rule. In determining the area which will be seaward of the seasonal high-water line in 30 years, the department shall not include any areas landward of a coastal construction control line. The "seasonal high-m7ater line" is defin ed as the line formed by the-intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high water. While the Beaches and Shores profile data base is one of the most comprehensive and largest of its kind, the field data collection effort of the Bureau of Coastal Data Acquistion has been in effect only since 1971. These data 'which are tailored for use in the establishment of CCCLs, do not cover a sufficient historical period to reliably allow for assessment of long-term shoreline changes. Therefore, the Division has entered into contracts on a county-by-county basis to obtain historical shoreline data for the period from about 1850 to 1971. Procedures for obtaining acceptable data, analysis of the data for determining rates, and establishment of a data base are given in section 16B-33.024, F. A. C. (see also Balsillie, and Moore, 19:35; Balsillie, @985e). An example of shoreline change rate data is illustrated for 4 DNR reference mounuments in Figure 7. Using such rates as specified in section 16B-33.024, F. A. C., and seasonal high-water, the 30-year erosion projection may be determined as illustrated in Figure 8. The Analysis/Research section is responsible for final determination of shoreline rate data. Pending the completion of offical county reports on shoreline change rates, the engineering staff of the Division remains available, based on existing data, to determine least ambiguous rates on a site-by-site basis. Preliminary rates are available for Gulf (Balsillie, 1985f) and Bay (Balsillie, 14 REGULATORY PROGRAM The order of appearance of program elements in this paper is based upon logical progression. For instance, without the preceding elements which define a sound scientific and engineering basis for establishment of jurisdiction and state-of-the-art knowledge, a credible regulatory program would be hard-pressed to endure. Regulatory responsibilities are conducted by the Bureau of Coastal Engineering and Regulation. Permitting Concerning control line regulation of Florida beach and coast activities, Section 161.053, F. S., stipulates: Upon the establishment, approval, and recordation of such coastal construction control line or lines, no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof; make any excavation, remove any beach material, or otherwise alter existing ground elevations; drive any vehicle on, over, or across any sand dune or the vegetation growing thereon seaward thereof except as ..... (provided by the act). Regulatory aspects of the provisions of Chapter 161, F. S. are implemented by Chapter 16B-33 of the Florida Administrative ode (F. A. C.). This rule sets forth the requirements and procedures relating to coastal construction, excavation and Calteration seaward of CCCLs to.include: 1. procedures for surveying, 2. procedures for processing applications for permits to conduct activities seaward of CCCLs, and 3. conditions to be placed upon permits. Because of its highly detailed nature, it is not possible to present and in-depth discussion of this rule. However, with regard to the permit application review process, it is possible to highlight some of the more important review issues. When applying for a permit (DNR Form 32-600) the applicant, in addition to supplying obvious identifying administrative information, is required to provide technically oriented data. These include: 1. a recent topographic survey (within 6 months from the date of application) certified by a land surveyor registered in the State of Florida, providing topographic information including the location of the water's edge, vegetation line, the coastal construction control line referenced to the closest two DNR reference monuments, and 19 any existing structure(s) on the subject and adjacent properties, 2. detailed site, grading, drainage and structural plans and specifications for all proposed activities including subgrade construction or excavation with pertinent engineering calculations and elevations referenced to datum, and 3. other site-specific information deemed necessary by the Division professional staff for evaluation of the application. Design force element categories considered by the coastal .engineering staff include the wind, storm tide water levels, and waves which propagate upon the storm surge. The design wind velocity, for structural loading conpu-. .tations, is based on a minimum of 140 mph (Balsillie, 1978) using boundary layer formulation cited in the rule, including appropriate shape factors in accordance with standard building code practice. All major structures are required to be elevated on, and securely anchored to, an adequate piling foundation such that the underside of the lowest supporting structural member excluding the piling foundation, shall be above the 100-year return storm surge plus an additional vertical distance to allow for appropriate, site specific design wave activity. The staff is also required to consider federal base flood elevations recommended by FEMA's Federal Insurance Administration. The piling foundation must be designed to withstand all reasonably anticipated loads resulting from a 100-year return hurricane including at least wind an-d wave forces acting simultaneously with typical structural loads. No substantial walls or partitions are allowed below the first finished floor and seaward of the CCCL. The elevation sed in the calculation of piling of the "soil surface" u, reactions and bearing capacities is that which is reasonably expected from anticipated beach and dune erosion (including dune-bluff recession and local scour) due to the 100-year design storm. Coastal or shore protection structures extending totally or in part seaward of the CCCL are required to be designed to resist the predicted natural forces consistent with the proposed usage and design life of the structure. Design considerations for such structures include structural siting, crest and toe elevations, structural slope(s), components as impacted by waves superimposed upon the design 'storm tide., expected scour, and impact on the beach-dune system and adjacent properties. The applicant is also required to furnish the Department with certification by a profession engineer or architect, registered in the State of Flori& --iat the design plans and specifi-cations submitted as a par- zf the application are in compliance with provisions of the le. In addition to technical issues, beach-dune preservation and project siting are considered. While the program 20 acknowledges the existing line of construction as well as reasonable use of property, efficient usage of property upland of the CCCL is prerequisite to a favorable staff recommendation @or a permit. Considered in the review process are construction impacts on the beach and coast (e.g., dunes), adjacent property and potential alongshore cumulative impacts, public access, vegetation, and nesting turtles. In addition to use of latest editions of the Standand Building Code (Southern Standard Building Code Congress Internati6nal, Inc.), South Florida Building Code, Shore Protection Manual (U. S. Army., 1984, Coastal Engineering Research Center), and other pertinent design force documents (e.g., CERC and ASCE technical publications, FEMA's Design and Construction Manual for Residential Buildings in Coastal High Hazard Areas), etc., the Division is authorized to compile Beaches and Shores Technical and Design Memoranda (State of Florida, 1987). A distinction is made between major structures (e.g., houses, condominiums, motels, resturants, seawalls, swimming pools) and minor structures (e.g., pile supported dune walkovers and viewing platforms, beach access ramps, cantilevered decks or porches). Minor structures are not .required to meet specific structural requirements for wind and waves, but are required to be designed to produce minimum adverse impact on the beach-dune system and adjacent property and to reduce the potential for generating aerodynamically or hydrodynamically propelled missiles. Following completion of the permit application review process, the coastal engineering staff of the Bureau of Coastal Engineering and Regulation make a recommendation with supporting evidence of either approval or denial. While the Department of Natural Resources has delegated approval/denial authority for certain types of projects, substantive projects must go to the Florida capitol for further reveiw. Final decision-making authority rests with the Governor and six member Cabinent, who convene twice-monthly to deliberate such matters. The permitting workload of the Division of Beaches and Shores by year for the period 1970-1986, is illustrated in Figure 10. Enforcement Violations of Chapter 161, F. S., or any supporting rules are prosecuted, accompanied by a fine of each offense in an amount up to $10,000 to be fixed, imposed and collected by the Department. Each day during any portion of which such violation occurs constitutes a separate offense. Discovery and monitoring of violations and the progress of permitted activities are made by a staff of field inspectors of the 21 Field Inspection Section, and periodic site visits by the coastal engineering staff. Physical mitigation including removal or modifications are additional enforcement options. violation investigations and processing is administered by the office of Administrative Enforcement. Records Management Administrative aspects of the Bureau of Coastal Engineering and Regulation requires the processing of significant amounts of paperwork. It is the responsibility of the Document's/Records Management Section to maintain the Bureau's permit filing system and permit activity computer data base. The section serves as a resource for procedural consistency and adequacy in correspondence and permitting by maintaining a system of forms and form letters, coordinates follow-up on permit compliance including progress monitoring and final certification reports, and handles procedural matters for permit time extensions and transfers. Requests for public records in the custody of the Bureau are handled by the section. BEACH EROSION CONTROL PROGRAM The popularity of any governmental unit which regulates activities of the public and private sector is, at best, a controversial subject. It is optimistic, therefore, that if a program is to regulate to preserve a natural resource, that an assistance program is in place to provide aid commensurate and consistent with program goals. Such is the Beach Erosion Control Program. General Program Description Pursuant to section 161.101, F. S., the Department of Natural Resources is constituted as the beach and shore preservation authority for the State. Further, there is created in the State Treasury (section 161.091, F. S.) an Beach Management Trust Fund administered by the Office of Erosion Control through -the Department to which the Legislature may make appropriations and authorize expenditures. Funds in the account are available to assist in the realizatiin of State responsibilities toward comprehensive, long-range, State-wide plans for erosion control, beach preservation and hurricane protection. Detailed specifications of the provisions of 161.091, F. S., are implemented in Chapter 16B-36, F. A. C. This rule sets forth policies and procedures for administering the Beach Erosion Control Assistance Program to provide funding assistance to local governments in support of 23 alleviating serious sandy beach erosion problems and for the protection and preservation of sandy beach resources of Florida. Based on the availability of Beach Management Trust Fund resources, the Division through the Department may recommend approval to the Governor and Cabinet for those projects found to be in support of beach preservation and erosion control activities. such projects include: a. Beach restoration/renourishment, b. Sand transfer, bypassing and stockpiling, c. Jetties, groins, breakwaters, revetments, d. Sand trap construction and maintenance, e. Dune construction and revegetation, f. Beach-dune overwalks, g. Dune protective walkways or other measures for dune protection/preservation, h. Sand fencing, i. Biological and hydrological monitoring studies, j. Sand source studies, k. Educations signs, and 1. Other projects of desirable intent. Additionally, in order for a given project to be eligible for funding assistance two other significant constraints are required: First, the Legislature has declared it public policy of the State (section 161.141, F. S.) to establish for beach restoration, renourishment and erosion control projects, boundaries designating sovereinty jurisdiction. These boundaries, termed Erosion Control Lines (ECL s), are to be located a sufficient distance landward of the line of mean high water to provide for an equitable distribution of a restored beach between State and upland ownership (subject to provisions of sections 161.141 through 161.211, F. S.); the purpose is to guarantee public use of beach resources seaward of the ECL, generally prevailing for the engineered and maintained design life of the project. Second, the project applicant must provide permanent public access to project areas at approximately 1/2-mile intervals with adequate vehicle parking areas. Comprehensive Beach Management Program Pursuant to section 161.161, F. S., the Florida Department of Natural Resources, Division of Beaches and Shores is required to develop and maintain a comprehensive, long-term management plan for Florida's beaches on a district-by-district basis (Figure 11). Responsibilities include identification of areas of critical beach erosion, determination of the most viable means to addres identified identified erosion problems, to recommend a list of beach erosion control projects, and to recommend solutions for enhancing and 24 protecting beach resources for review and action by the Governor and Cabinet and State Legislature. Initial areas for which planning studies have been conducted include Districts III, IV', and VI (State of Florida, 1988). RELATED STATE PROGRAMS It would be misleading to suggest that.the Florida Department of Natural Resources is only state agency which deals with Florida coastal issues. Following are simple discriptions of some programmatic efforts related to the mission of the division. Institute of Science and Public Affairs The Institute of Science and Public Affairs located at Florida State University in Tallahassee is made up of a number of centers which are ava."Llable for conducting research for State government. Two of these centers have been of invaluable assistance to the Division of Beaches and Shores. The Beaches and Shores Resource Center under the direction of Dr. T. Y. Chiu has been retained to run the R. G. Dean 'storm tide and erosion models and based upon such results to recommend to the Department locations for Coastal Construction Control Lines. The Florida Resources Environmental Analysis Center (FREAC) has performed various services, most notably the discovery and analysis of historical shoreline surveys dating back to 1850 for use in determining long-term shoreline change rates. Florida Coastal Management Program The Florida Coastal Management Program was developed in response to the National Coastal Zone.Management Act of 1972. This act provides for voluntary participation by coastal states to develop and maintain programs for carrying out a national policy 11 ... to preserve, protect, develop, and where possible to enhance the resources of the Nation's coastal zone for this and future generations". Under the federal act, eligible states receive federal funding assistance to implement their approved programs and to review federal activities for consistency with those programs. The Florida Coastal Management Program, Florida Department of Environmental Regulation, includes 25 state laws, administered by 16 state agencies. Program components include the Interagency 26 Management Committee created by the Governor and Cabinet (comprised of the Secretaries and Executive Directors of state agencies), the Interagency Advisory Committee (comprised of technically oriented members of state agencies), the Citizen's Advisory Committee (public and citizen representatives appointed by the Governor for two-year terns), and the Federal Consistency effort (coordinated by the Office of the Governor and the office of Coastal Zone Management). Coastal and Oceanographic Engineering Department The Coastal and Oceanographic Engineering Department at the University of Florida in Gainesville has, through the years been closely associated with the Division of Beaches and Shores, and has performed a multitude of coastal engineering services. Coastal Zone Protection Amendment The Florida Growth Management Amendment of 1985 created Part III of Chap. 161, F. S. This amendment extends construction jurisdiction upland of Coastal Construction Control Lines and defines zones where CCCLs are not established. Specifically, local communities are required to adopt acceptable standards for .development activities. This part of Chap. 161, F. S., is administered by the Florida Department of Community Affairs, with the Division of Beaches and Shores providing technical guidance. Florida Sea Grant Program The federally funded Florida Sea Grant program provides a mechanism for funding academic technical research and provides an advisory program related to Florida's coastal issues. Sea Level Rise Institute The newly established Sea Level Rise Institute at Florida State University in Tallahassee will be concerned with public education and technical aspects related to the topic. 27 I I I I I I APPENDIX I I I A HANDBOOK FOR DEVELOPMENT I IN NORTH CAROLINA'S COASTAL AREA I I I I I I I I I I I I A HANDBOOK FOR DEVEL0PMENT IN NORTH CAROLINA'S COASTAL AREA Division of Coastal Management N.C. Department of Natural Resources and Community Development 1985 z In carrying out its responsibilities under the life and property and damage to the natural Coastal Area Management Act, the Coastal environment. Absolute safety from destructive Resources Commission has designated four natural forces is impossible for development categories of Areas of Environmental Concern along the oceanfront. However, the loss of life (AECs): the estuarine system, the ocean hazard and property from these forces can be greatly system, public water supplies, and natural and reduced by the proper location and design of cultural resource areas. These AECs, and the oceanfront structures and by preventing dam- standards for development in them, cover the age to natural protective features such as pri- coastal waters and about three percent of the mary and frontal dunes. land area of the 20 coastal counties. The fol- lowing descriptions of the ocean hazard system The Coastal Resources Commission has AECs will help you identify whether or not designated three ocean hazard AECs in which your project is located in an area of environ- CAMA permits are required: the ocean erodi- mental concern, as well as explain each area's ble area, the high hazard flood area, and the importance and the reasons why it is necessary inlet hazard area (see Figure 29). CAMA permit to manage development there. standards for development in these areas are designed to: The ocean hazard system covers those lands 9minimize loss of life and property due to along the oceanfront and along the state's storms and long-term erosion; many inlets that are vulnerable to storms, *prevent the encroachment of permanent flooding, and erosion. The shape and location structures on public beaches; and of these landforms, especially the beaches, 0reduce the costs that improperly designed dunes, and inlets, are always changing due to development imposes on the public (e.g., the forces of nature. The constant forces funding of erosion control works, beach exerted by waves, wind, and water currents nourishment projects, disaster relief aid, upon the sands of the ocean shoreline create a and the like). variety of hazards that threaten human activi- ties along the oceanfront and inlets. During The three ocean hazard areas overlap in storms, these forces intensify and can quickly many places, even though they are separate change the shape of the shoreline, beaches, AECs with their own standards for develop- and dunes, and damage any structures located ment. The Division of Coastal Management's on them. At the same time, the beaches and field consultants have aerial photographs delin- dunes also protect structures located behind eating the exact boundaries of all the ocean them by absorbing the force of wind and hazard AECs. waves. Because of this special vulnerability to natu- Ocean Erodible Areas ral hazards and the need to maintain beaches The ocean erodible AEC covers the beaches and dunes, development in ocean hazard areas and lands adjacent to the ocean which have a must be carefully designed to avoid losses of substantial possibility of long-term erosion and 60 significant shoreline changes. The seaward boundary of this AEC is the mean low water line. The AEC extends landward for a distance equal to 60 times the long-term average annual rate of erosion for that particular stretch ol: ocean shoreline, plus an additional distance where significant erosion can be expected dur- ing a major storm (see Figure 30). The width of SOUND this AEC varies for different sections of the oceanfront based on the Division of Coastal Management's analysis of historical erosion rates for each section of the Atlantic coast. The actual width of ocean erodible AECs along the coast varies from about 145 feet to over 701) TYPICAL BARRIER ISLAND feet. INLET :Ilk High Hazard Flood Areas The high hazard flood AEC covers lands sub- ject to flooding, wave action, and high velocity water currents during a major storm. These are lands identified as Zones V1 to V30 on the OCEAN HAZARD AEC flood insurance rate maps prepared for ocean- OCEAN V-ZONE/FLOOD HAZARD front communities by the Federal insurance INLET HAZARD Administration. The area covered by "V- OCEAN ERODI zones" is determined by an engineering analy- Figure 29. Ocean Hazard Areas of Environmental Concern sis of expected flood levels during a storm, expected wave and current patterns, and the existing topography or "lay of the land." 11' the community does not have flood insurance rate maps available, other data on flooding, as approved by the CRC, may be used to define the high hazard flood AECs. The high hazard flood AEC overlaps with, but is usually wider than, the ocean erodible AEC. Inlet Hazard Areas Because they are adjacent to dynamic ocean inlets, inlet hazard AECs are especially vulner- able to erosion, flooding, and dramatic shore- 61 line changes. Inlet hazard AECs are delineated on maps prepared by the Division of Coastal Management for each inlet along the coast based on an analysis of inlet migration rates and the lowness and narrowness of adjacent lands. The maps are reviewed and approved by the Coastal Resources Commission. In each case, the inlet hazard AEC extends landward from the mean low water line for a distance sufficient to encompass those lands where the inlet can be expected to migrate. The delinea- tion of each area is based on a statistical analy- sis of inlet migration, previous inlet locations, relatively narrow or low areas near the inlet, and the influence of such manmade features as jetties and channelization projects. The width of inlet hazard AECs varies from one inlet to the next; the AEC is narrower near relatively stable inlets and wider near more dynamic inlets. In all areas, the inlet hazard AEC covers, at a minimum, the same distance inland as the ocean erodible AEC. The inlet hazard AECs range in width from about 250 feet for a fairly stable inlet to about 4,000 feet for the most dynamic inlets, J@. dJ OCEAN HAZARD AECs prevent encroachment of permanent struc- Ocean erodible areas face long-term erosion tures on public beach areas, and to reduce and sudden storm-induced shoreline changes. the public costs of inappropriately sited High hazard flood areas face flooding and development. wave wash during a hurricane, northeaster, or other major storm. Inlet hazard areas face e Development in ocean hazard areas must long-term erosion, sudden shoreline changes, incorporate all reasonable means and flooding, and storm waves. Development in methods to avoid or minimize damage to the these three areas can pose a serious threat to natural environment and access to the public lives and property in oceanfront communities. beaches. These include measures that will: The Coastal Resources Commission has 1. limit the scale of the project and the adopted general use standards for develop- damage it causes; ment within ocean erodible areas, high hazard 2. restore the damaged environment; or flood areas, and inlet hazard areas. These 3. provide substitute resources to com- standards protect human lives and property by pensate for the damage. guiding the location and design of oceanfront structures. They protect sand dunes from de- No development shall involve the significant struction. They reduce the costs that improp- removal or relocation of sands or vegetation erly designed development imposes on the from primary or frontal dunes. taxpaying public for building and maintaining Primary and frontal dunes help protect erosion control structures and beach nourish- structures built behind them from erosion, ment projects and for funding disaster relief flooding, and storm waves. They also play aid. They protect the public beach from struc- a vital role in maintaining the structure of tures that would interfere with the public's North Carolina's barrier islands and access to and use of the beach. beaches. The dense root networks of the vegetation that grows on dunes help trap Any development project which requires a and anchor the sand. The alteration of CAMA permit in an ocean erodible AEC, high frontal and primary dunes, and the vegeta- hazard flood AEC, or inlet hazard AEC must tion on them, can change natural beach meet the following standards (which are offi- renourishment patterns, disrupt the stabil- cially stated in Title 15, Subchapter 7H, Section ity of the entire barrier island system, and .0306 of the N.C. Administrative Code) before increase the risk of damage to human a minor development permit or a major devel- structures from erosion, flooding, and opment permit can be granted. waves. Development should be located as far back 0 Development must be located and designed from the ocean as possible. At a minimum, to minimize losses to life and property result- small structures, such as beach cottages, must ing from storms and long-term erosion, to be located behind the erosion setback line, the crest of the "primary dune" OR the A landward toe of the "frontal dune," which- 30 EROSION FIRST LINE OF STABLE RATE NATURAL VEGETATION' ever is the farthest landward. OCEAN 1. The "erosion setback line" (see Fig- ure 30(A)) extends landward from the first line of stable natural vegetation B 30 EROSION to a distance equal to 30 times the FIRST LINE OF STABLE average annual erosion rate at the RATE CREST' 4 ".n.v NATURAL VEGETATION site. In areas where erosion is less OF D UNE OCEAN than two feet per year, there is a min- PRIMARY FRONTAL"' DUNE DUNE imum setback required of 60 feet landward from the vegetation li'ne. C TOE OF 30 x EROSION F Erosion rates for different segments RONTAL RA*TE FIRST LINE OF STABLE NATURAL VEGETATION DUNE of the state's ocean shoreline are determined by the Division of Coastal FRONTAL Management using an analysis of D UNE ;Z@ aerial photographs dating back to the Figure 30. (A) (B) (C). Diagram of the different minimum 1930's. These rates are adopted by the oceanfront setbacks required when building small Coastal Resources Commission to structures. establish the "erosion setback line." 2. A "primary dune" is defined as the first mounds of sand located land- ward of the ocean beaches having an 60 . ER05ION RATE FIRST LINE OF 0 11 1 elevation equal to the mean flood OR 30 x EROSION RATE + 105' STABLE NATURAL level for the area plus six feet. The WHICHEVER IS LESS @IVEGETATION crest of the primary dune (see Figure =3! OCEAN -by- 30(13)) is determined, on a case case basis, by a DCM field consultant or local permit officer. 3. "Frontal dunes" are the first mounds of sand'located landward of the Figure 31. Diagram of minimum setback required when ocean beach with sufficient vegeta- building large structures on the oceanfront. tion, height, and configuration to offer protection from ocean storms. The landward toe of the frontal dune (see Figure 30(C)) is determined, on a case-by-case basis, by a DCM field consultant or local permit officer. B RT LINE C -R JU NATURAL VI RAT@l @O F Di@' NE @ONTA L F R 0 =T A 64 NOTE: Man-made dunes created heads, seawalls, and concrete breakwaters, after June 1, 1979, will not be consid- may be built to protect oceanfront property. ered frontal or primary dunes. The preferred oceanfront erosion responses are beach nourishment and relocation of threatened buildings. Temporary erosion pro- tection devices, such as low sandbag bulk- Large-scale development, such as motels and heads and groins, may be permitted if certain condominiums, must meet an additional set- conditions are met. back requirement, due to the unique physi- By granting permits, the Coastal Resources cal, financial, and legal problems these struc- Commission does not guarantee the safety tures pose. The following requirement applies of the development; nor does the CRC to any structure of more than four dwelling assume liability for future damage to the units or 5,000 square feet (see Figure 31). development. The erosion setback line for large struc- 0 All relocation of structures in ocean hazard tures extends landward from the first line areas requires permit approval. of stable natural vegetation to a distance Structures relocated entirely with private equal to 60 times the average annual ero- funds shall be relocated as far landward of sion rate at the site. The maximum addi- the present location as possible. Structures tional setback for large structures is 105 relocated with public funds shall move to feet. For example, in an area with an aver- behind the applicable oceanfront setback age annual erosion rate of 10 feet per year, and comply with all other AEC standards. the setback for small structures would be 0 Development must meet 300 feet. In this same area the setback for all minimum lot size large structures - if there were no ceiling and setback requirements established by the level - would be 600 feet. Because the local government. basic setback cannot be increased by more Counties and towns often adopt regula- than 105 feet, the setback would be 405 tions requiring a setback from roads, prop- feet: the 300-foot basic setback plus 105 erty lines, dunes, and the like. Information feet. on local setback requirements' can be The permit applicant must sign an AEC obtained from the local building inspector. Hazard Notice as part of the CAMA permit 0 The project must comply with the local land application to acknowledge that he or she is use plan. aware of the risks associated with develop- Each of the coastal region's 20 counties and ment in the ocean hazard area and of the nearly all of its incorporated towns have area's limited suitability for permanent struc- adopted local land use plans under the tures. The hazard notice also states that the Coastal Area Management Act. A local applicant is aware that no permanent erosion land use plan contains the goals citizens protection structures, such as wooden bulk- have for their community, a set of policies that the community will use to manage There are numerous sites along the coast development to reach these goals, and a which contain significant cultural resources map classifying lands in the community that need to be protected. Historic archi- according to the types of development that tectural structures provide examples of should occur on them. The Act requires important architectural styles and/or a projects receiving CAMA permits to legacy of people who have played an comply with the local land use plan. If the important role in the coastal region's his- local land use plan does not allow a certain tory. Archaeological resources (such as type of development within the land classi- sites containing the remains of Indian set- fication where i*t is proposed, a CAMA flements, shipwrecks, and Civil or Revolu- permit cannot be issued for that project. tionary War artifacts) provide valuable information on the history of the coastal � Mobile homes must not be placed within the region and its people. These resour( high hazard flood area unless they are within need protection, not only for historical and mobile home parks that existed before June archaeological research, but also as lasting 1,1979. symbols of the coastal region's heritage. Mobile homes are generally less able to Information on the location of valuable withstand the flooding, wave wash, and architectural or archaeological sites can be high winds associated with hurricanes, obtained from the Division of Archives and northeasters, and other major storms that History in the Department of Cultural strike the North Carolina coast. Not only Resources. (See appendices for address are they more likely to sustain damage and phone number.) than are other types of construction, they are also more likely to caUSE- damage to other buildings by floating or blowing into In order to avoid excessive public expendi- them. tures for repairs, the construction or place- ment of a publicly funded facility (such as � Development must not unduly interfere with sewers, waterlines, roads, bridges, and ero the access to or use of public resources. sion control works) will be permitted only if The public has 2 right to reach, use, and the following conditions are met: enjoy those resources that belong to all the 1. it exhibits an overriding public benefit people of the state (such as the state's or is of national or state interest; beaches and waters). Legal rights of access 2. it will not promote additional devel- or use cannot be blocked by proposed opment in ocean hazard AECs; development. 3. it will not damage natural buffers to erosion, wave wash, and flooding or � Development must not cause major or irre- otherwise increase existing hazards; versible damage to valuable, documented his- and toric architectural or archaeological 4. it is designed to avoid or withstand resources. damage from flooding and erosion. 66 EXCEPTIONS 9 the lowest habitable floor of the structure The following types of development may be covers no more than 1,000 square feet or 10 permitted between the oceanfront setback line percent of the lot area, whichever is and the vegetation line if they involve no alter- greater; and ation or removal of primary dunes, frontal 9the project meets all other state and local dunes, and dune vegetation; if they have over- requirements, walks to protect existing dunes; and if they meet all other standards for ocean hazard If the development is to be serviced by an AECs: on-site waste disposal system, a copy of a valid �campgrounds that do not involve substan- permit for this system (from the local board of tial permanent structures; health or N.C. Department of Human Re- �parking areas with clay, packed sand, or sources) must be submitted with the CAMA similar surfaces; permit application. �outdoor tennis courts; �beach access structures; THESE EXCEPTIONS DO NOT APPLY TO 0elevated decks not exceeding 500 square INLET HAZARD AREAS. feet of floor area; �uninhabitable storage sheds and unen- closed, uninhabitable gazebos with a floor area not exceeding 200 square feet; �temporary amusement stands; and � swimming pools. Where application of the oceanfront setback requirement would preclude the development of permanent structures on lots which existed as of June 1, 1979, single family homes may be permitted seaward of the setback line in ocean erodible areas if they meet all of the following conditions: �the structure is set back as far as possible from the ocean, with minimal encroach- ment into the setback area; �it is at least 60 feet landward of the vegeta- tion line; �it is entirely behind the landward toe of the frontal dune; 0all pilings used to support the structure penetrate down to at least four feet below mean sea level (see Figure 34); 2 :@7 a ... .. k 1 7,z 7.: -7; ? _7 OCEANFRONT CONSTRUCTION i 100 YEA R Erosion is the rule rather than the exception on North Carolina's FIOOD barrier islands: over a LEVEL .07 period of months or years, the beach and dunes retreat further and further back until OCEAN oceanfront buildings are threatened. Severe MEAN SEA LEVEL erosion can also occur overnight as a result of storm tides, waves, and wind. Figure 32. Houses must be elevated to or above the 100 Building a home or business along North year flood level. The DCM field consultant or local permit officer can provide these specifications. Carolina's oceanfront allows people to fully enjoy the state's beaches, surf, and sun. These are the very resources which draw people to the coast. However, the shoreline is a dynamic environment that presents a variety of hazards to oceanfront development. Northeasters, hurricanes, and other major -%e storms frequently strike the coast. Their heavy waves, erosion, flooding, and high winds can drastically change the shape of the beach, Figure 33. Minimum dimensions for threaten human lives, and cause millions of pilings allowable on oceanfront dollars of property damage in oceanfront construction. communities. Therefore, in order to avoid dis- aster while getting the most enjoyment from the beaches, development must recognize the CREST OF PRIMARY DUNE oceanfront's hazards and be located and designed to accommodate them. I I NY- To avoid unreasonable danger to life and OCEAN property, new construction and substantial L j i;L GRADE EA V-E ""Ow ! " ` S improvements to existing structures (an -W 4'BELOW MEAN SEA LEVEL increase of 50 percent or more in value or square footage) must meet specific standards Figure 34. Piling depth necessary for building on and in addition to the general use standards for behind a primary dune. ocean hazard AECs. These standards (which are officially stated in Title 15, Subchapter 7H, Sec- tion .0308(d) of the N.C. Administrative Code) are as follows. 68 0 Any building, constructed within an ocean hazard area must comply with Appendix D, "Windstorm Resistive Construction" of the N.C. Residential Building Code. When any provisions of that appendix are inconsistent with the AEC standards, the more restrictive provisions shall control. 5 The local building inspector can explair, MAXIMUM what is required by the. State Building Code. Appendix D presents "design wind ;DEPTH CROSSWAY SHOULD NOT TOUCH DUNE, speeds" and construction methods that OR TO LEAST EXTENT POSSIBLE help guard a building against wind dam- Figure 35. Maximum piling depth for accessways. age during a storm. Lo 0 All development must be designed and located to minimize damage due to wave NEW DUNE action and ground level fluctuations in a "100-year" storm. All foundations must be EXISTING DUNE designed to be stable in a 100-year storm. Cantilevered decks and walkways shall meet this standard or be designed to break away OCEAN without damaging the main building. * The bottom of the foundation (excluding pil- SIMILAR WIDTH ings and footings) must be elevated to or above the 100-year flood level (see Figure 32). SIMILAR HEIGHT 0 All structures shall be on pilings that are no less than eight inches in diameter (if round) VEGETATE AS QUICKLY AS POSSIBLE or eight inches to a side (if square) (see Fig- ure 33). * The tips of all pilings must penetrate to at Figure 36. Requirements for creating new dunes. least eight feet below the lowest ground ele- vation under the structure. For structures on or in front of the primary dune, the pilings must extend to four feet below mean sea level (see Figure 34). Driving pilings more deeply increases their SIMIL 69 ability to withstand serious storm-induced pathway that keeps people from cutting trails erosion of the ground beneath the build- through dunes, and weakening the dunes' abil- ing. Once erosion totally exposes the pil- ity to buffer erosion and protect oceanfront ings, the building will collapse from the buildings. lack of support. To ensure that the dune system is not dam- 9 All pilings must be treated to resist decay, aged when building a structural accessway, insects, and corrosion. specific standards - in addition to the general use standards for ocean hazard AECs - must 9 All walls below the 100-year flood level must be met. These standards (which are officially be designed and built to meet ALL of the fol- stated in Title 15, Subchapter 7H, Section lowing conditions: .0308(c) of the N.C. Administrative Code) are 1. to allow storm waters to rise and flow described here. freely under the building; 2. to collapse under stress without jeop- 9 A structural accessway will be permitted ardizing the building's structural across a dune as long as it entails negligible support; alteration of the dune. No accessway shall 3. to not become waterborne debris diminish the dune's capacity as a barrier to themselves, and flooding and erosion. 4. to not cause waterborne debris to Primary and frontal dunes help protect accumulate. structures behind them from erosion, flooding, and storm waves. They also play e All exposed structural connections must be a vital role in maintaining the structure of adequately rustproofed or enclosed. North Carolina's barrier islands and beaches. The dense root networks of the 0 All utility systems (such as heating, air condi- vegetation that grows on dunes help trap tioning, and electrical boxes) must be located and anchor the sand. The alteration of and built to avoid or reduce storm damage. frontal and primary dunes - and the vegetation on them - can disrupt natural e No impermeable surfaces (such as asphalt or beach renourishment patterns, destabilize concrete) shall be placed over any functional the entire barrier island system, and part of a complete septic tank system. increase the risk of damage to human structures from erosion, flooding, and STRUCTURAL ACCESSWAYS waves. People who own oceanfront property often 0 The accessway must be exclusively for pedes- build wooden walks from their house or busi- trian use. ness out to the beach. These "structural accessways" make it easier to get to and from 0 The accessway must be less than six feet the beach. They also provide a well-defined wide. 70 The accessway must be raised on pilings tion, you must notify the local permit officer or embedded to a depth of five feet or lessso the DCM field consultant about the dimen- that only the pilings touch the frontal clune. sions of the proposed accessway, its location, Where this is not possible, the accessway may and the landowner's name, address, and tele- touch the dune only to the extent necessary phone number. This exemption is officially (see Figure 35). stated in Title 15, Subchapter 7K, Section .0308 Elevating the accessway allows the dune to of the N.C. Administrative Code. adjust naturally to wind and wave forces and thus maintain the stability of the pro- OCEANFRONT EROSION PROTECTION tective dune system. MEASURES An accessway larger than six feet wide and Erosion is a fact of life in North Carolina's used for anything other than pedestrians will oceanfront communities. It is a natural geo- be permitted only if it is elevated above the logic process; there is nothing that people can dune and serves a public need which cannot do to stop it. Although there are several ero- be met otherwise. This rule does not apply to sion responses which may be helpful for short public fishing piers as long as they meetall periods, eventually threatened structures will other standards. need to be moved to a safer location. In build- ing a structure, it should be placed as far back Any vegetated areas that are disturbed in the from the beach as is possible. For existing construction and use of the accessway must buildings threatened by erosion, relocation to be revegetated as quickly as possible. safer sites or replenishing the beach's supply of The stems and roots of beach grasses and sand are the preferred responses. Attempts to other plants hold sand in place and thus permanently stabilize the shoreline, by such help stabilize the dune system. measures as bulkheads, seawalls, and sandbags, will cause the loss of the public beach and increase erosion at adjacent properties by EXEMPTION interrupting natural sand migration patterns. The Coastal Resources Commission does not require a minor development permit for non- To protect private property from erosion commercial, pedestrian accessways that do not while maintaining the public beach, ocean- exceed six feet in width. The accessway must front erosion protection measures must meet be built with no unnecessary alterations to the specific standards in addition to the general frontal dune. (Driving pilings into the dune is use standards for ocean hazard AECs. These not considered "alteration" in this case.) In no standards (which are officially stated in Title 15, case may the dune be altered to diminish its Subchapter 7H, Section .0308(a) of the N.C. capacity as a barrier against flooding and ero- Administrative Code) are explained below. sion. The accessway must conform to all appli- cable state and local building code standards. 0 Comprehensive shoreline management is Before beginning any work under this exemp- preferred over small-scale projects. 71 Erosion protection measures are more wildlife species unless adequate steps to pro- successful when they are coordinated and tect, restore, or replace that habitat are carried out over a larger stretch of shore- taken. line, rather than at scattered, individual sites. Project construction must be timed to cause the least possible damage to biological � Building relocation and beach renourishment processes. projects are preferred over other erosion Certain times of year and certain times of protection measures. day are important and sensitive to the breeding, spawning, nesting, and feeding � All "structural" erosion protection projects cycles of shorebirds, sea turtles, and other must demonstrate sound engineering important species that inhabit the beaches practices. and dunes. Erosion protection projects must accommodate these cycles in order � No permit for an erosion protection project to protect North Carolina's wildlife will be granted until notice has been given to resources. adjacent property owners and they have signed a notice form, or until a reasonable 0 Beach bulldozing (moving sand from any effort has been made to notify them by regis- point seaward of the first line of stable vege- tered or certified mail. tation to create a protective dike or for any � When an existing oceanfront structure is other purpose) may be permitted if all the imminently threatened by erosion, a prop- following conditions are met: erty owner may obtain a permit to temporar- 1. beach material is removed no deeper ily protect the structure with low sandbag than one foot below the existing sur- bulkheads, artificial seaweed, or beach face elevation; nourishment. 2. the movement of material maintains a An "existing, threatened structure" is one slope that does not endanger the where erosion places the structure's foun- public or the public's use of the dation in imminent danger of flooding or beach; collapsing. A foundation is normally con- 3. the project does not go beyond the sidered endangered when it is less than 20 bounds of the applicant's property feet from the erosion scarp or the seaward without the permission of neighbor- toe of the dune. In general, structural ing property owners; accessways, pools, parking lots, tennis 4. the project does not increase erosion courts, and similar structures do not qual- on neighboring properties; ify as existing, threatened structures. 5. no material is removed from below the mean low water line; No shoreline erosion project may be built in 6. the project does not damage impor- an area that provides a habitat for important tant natural or cultural resources; and 72 7. the movement of material protects tion projects must be thoughtfully planned and the threatened structure's foundation carried out to avoid damaging the beach and or threatened on-site waste disposal dune system. systems. In order to obtain a CAMA permit, dune establishment and stabilization projects must EXEMPTION meet the specific standards in addition to the The Coastal Resources Commission does not general use standards for all development in require a minor development permit for beach ocean hazard AECs. These standards (which are bulldozing in emergency situations, as long as officially stated in Title 15, Subchapter 7H, Sec- all the conditions stated above are met. Indi- tion .0308(b) of the N.C. Administrative Code) viduals proposing other activities as emergency are listed below. maintenance and repairs must first consult with the local permit officer to determine if the e No disturbance of dunes will be permitted action qualifies for exemption. "Emergency when alternative construction methods or maintenance and repairs" include any activity sites can be used for the project. that is a response to a sudden, unexpected event (such as a hurricane or other major 0 Existing primary and frontal dunes must not storm) which significantly endangers life or be broadened or extended toward the property. Property is considered endangered ocean, except for beach renourishment or when the structure's foundation is less than 20 emergency maintenance. feet from the toe of the erosion scarp. The exemption is limited to actions that prevent e No new dunes may be created in inlet hazard further danger or to restore the property to its areas. condition prior-to the emergency; it does not cover additions or expansions to the property. 9 Any new dunes must be aligned with and of This exemption is officially stated in Title 15, the same general configuration as existing Subchapter 7K, Sections .1010(5) and .0305 of neighboring dune ridges (see Figure 36). the N.C. Administrative Code. a Sand needed to strengthen existing dunes, or DUNE ESTABLISHMENT AND STABILIZATI .ON to establish new dunes, must be brought in from outside the ocean hazard area and must Sand dunes provide a natural buffer against be similar to the sand already on the the erosive forces of the wind, water, and property. waves. It is sometimes necessary to stabilize or Taking sand from one part of the ocean strengthen existing sand dunes, and even build hazard area to strengthen the dunes or new ones, as a defense against storm damage beach at another part of the AEC is the and to protect oceanfront buildings and roads. same as "robbing Peter to pay Paul" - it As with other types of development in ocean decreases the AEC's supply of sand that hazard AECs, dune establishment and stabiliza- helps buffer the forces of storms and ero- 73 sion. if the sand brought onto the project In order to obtain a CAMA permit, devel- site does not have a grain size and shape opment in inlet hazard areas must meet spe- similar to the sand that is already there, cific standards in addition to the general use then the new sand will not interlock with standards for all development in ocean hazard the existing sand to build stable dunes. AECs. These standards (which are officially stated in Title 15, Subchapter 7H, Section .0310 � If the work will help protect a proposed of the N.C. Administrative Code) are described structure, sand from any dune on the site below. other than the frontal and primary dunes may be moved to strengthen existing frontal 0 Only residential buildings of four units or and primary dunes. less, and non-residential structures of less than 5,000 square feet total floor area are � Sand must be added to dunes in a manner allowed within the inlet hazard area. causing the least possible damage to the existing vegetation. Any filled areas must be 9 All development must be set back from the immediately replanted or temporarily stabi- first line of stable natural vegetation a dis- lized until replanting is completed. tance equal to the setback required in the The stems and roots of beach grasses and neighboring ocean erodible area. other plants hold sand in place and thus help stabilize the dune system. e On lots created or subdivided after July 23, 1981, permanent structures will be allowed at INLET HAZARD AREAS a density of no more than one unit per 15,000 square feet of land area. Of the three ocean hazard AECs, inlet Mud flats, salt marshes, and beach areas hazard areas pose the greatest dangers to life seaward of the vegetation line are not and property. North Carolina's numerous included in computing a lot's land area or ocean inlets are constantly migrating - some- density. times widening and sometimes filling in. They are famous for their unpredictability. New 0 Traditional accessways to the beach that have inlets are created by major storms as inlind been subject to longstanding, open, and con- floodwaters "blow out" a low or narrow sec- tinuous public use must not be eliminated or tion of a barrier island so they can drain into otherwise restricted. the ocean. As the "pressure valve" for storm floodwaters entering and leaving the state's Shoreline stabilization structures are allowed sounds and tidal rivers, inlets and the lands only as part of a publicly supported project. flanking them are subject to severe erosion, flooding, and wave wash during and after major storms. These hazards call for even stricter guidelines for development in inlet hazard areas to protect human lives and property. I I I I I APPENDIX J I I WAVE REFRACTION ANALYSIS RESULTS I I I I I I I I I I I I I I I I I WAVE REFRACTION ANALYSIS I CASE STUDY SITE #1 - MAKAHA, OAHU I I I I I I I I I I I I I TABLE I- REFRACTION DATA FOR MAKAHA SITE WAVE APPROACH WAVE PERIOD RAY Ks Kr H/Ho NW 18 1 1.353 0.453 0.613 Nw is 4 1.399 0.978 1.368 Nw 18 6 1.392 1.117 1.554 NW 18 8 1.454 0.740 1.075 NW 18 10 1.282 0.560 0.718 w 18 4 1.360 0.890 1.210 w is 10 1.378 1.023 1.410 w 18 15 1.582 0.550 0.870 w is 20 1.363 1.386 1.889 w 18 24 1.464 0.969 1.418 S 18 4 1.455 0.631 0.918 S is 7 1.362 0.867 1.181 S 18 9 1.334 1.737 2.317 S 18 13 1.363 1.266 1.725 S 18 15 1.482 0.565 0.837 NW 14 3 1.120 0.434 0.486 NW 14 5 1.279 1.021 1.306 NW 14 7 1.183 1.509 1.785 NW 14 10 1.023 0.486 0.497 NW 14 12 1.328 0.812 1.078 w 14 5 1.206 1.028 1.239 w 14 10 1.248 0.822 1.026 w 14 15 1.210 0.822 0.995 w 14 20 1.276 1.052 1.342 w 14 24 1.209 2.548 3.080 S 14 3 1.307 0.736 0.962 S 14 7 1.118 0.499 0.558 S 14 10 1.227 1.131 1.388 S 14 13 1.219 2.288 2.789 S 14 16 1.256 0.664 0.834 NW 10 2 1.078 0.471 0.507 NW 10 4 1.077 1.198 1.290 Nw 10 6 1.067 0.997 1 . 064 NW 10 8 1.144 0.402 0.460' NW 10 10 1.087 0.661 0.718 w 10 5 1.062 0.912 0.968 w 10 10 1.083 0.804 0.871 w 10 15 1.073 0.974 1.045 w 10 20 1.105 0.738 0.815 w 10 25 1.078 0.859 0.926 S 10 1 1.072 1.185 1.270 S 10 5 1.087 0.956 1.039 S 10 10 1.074 1.074 1.153 S 10 15 1.084 1.334 1.446 S 10 19 1.080 1.155 1.247 N If I 1.0 1 SCRLE la mettr2 j Goa LH I -.----274@ "F'@INT 2 5 0-T MrIkAHR RERCH ARK ORHLJ I T 3, DEEPWRTER HNGLE(DEG TRUE) T1 5 WAVE PERIN IB seconds N SCRLE ia Meterk 1000 KEPU@4I F02NT 24 Ea 22 MRVRHR RERCH 20 L 9 4 LT OAHU L 13 52 T L 7 L G L 5 T L .4 4 9 T L 3 L 2 Ll @--2@ G OT L V L L 2 DEEPWMER M14GLECOEG TRUE) E WAVE PERIM 1B sevondE: T IT SCFLE rd metar2 I rdea Z23 KEPUHI 2 T FOINT I T- MAkAHA RERCH PARK ,aim r ORHU 2'SlB A30T T 21 2 FT 27T 2 t 4 DEEPWMER HNGLEC A HAW PERIOD IB a c 1( s k6 3@ L I N f I L 12 7 SCRLE KEPLWI POINT T MRKAHA REACH FARK ORHU T __--E 56 T L L BEEPWRTER RNGLE(DEG TRUE) V 5 WWI PERIM 14 seconds SCRLE Q meterrd MOO KEPUHI FQJNT 21 3a 29 213 MRKAHR LERCH 2 7 PARK 28 25 ORHU 2.4 6T 23 22 51T B 6 _--_255T 5ET L 7 -49T LF: 597 L5 r @@&!14T5 T LO .............................. j 4,f,@,o MT 47T 2 DEEPWRTER HNGLE(DIG TRUE) EPTIO WE PERIOD = 14 seconds @ @T SCRLE Q mcter2 j logo .25 KE:PUHI POINT MAKAHA BEACH p ri R K, ,22-7 L47 OAHU 10 e2ST 1 111 4T 2@M 12T E&7 LST Q S Ti I 25T 2 tT %, Mr DEE3=WRIER RNGLECOEG WA%E PERIOD 14 N 9 7 SCRLE 4 la metern JIM KEPL141 POINT MAKAHR 2ERCH PRRK ORHU 6 6 T 7ST SGT 5 PT PLT DEE32WITER RNGLECE)EG TYRUE) Tl 5 HAE PERIDO = 10 seconds @Kl N SCFILE materL 3000 KEPUHI POINT 22 20 27 2G MRKAHR RERCH 25 P A R K 2.4 --05 2 r 23 5 N. ORHU 'P2 ET 21 a V 53T 66T I BEA L L 5 L4 6TT 12 @yj 2 =_,2-2T @@iLT LV IT T L 2 4. 1 DEEPWR7ER RNGLE(DEG TRUE) r7m WAVE PERIOD 10 seDonds N If II SCRLE a Meter2 11280 KEPL14 I POINT 2 J T MPVRHP PERCH a '14r PFIRK OAHU 92 7 42T I BEL 87T 157 25T T 2sr DEEPWRIER MNGLECOEG 1) 3 WAVE PERIOD = 10 sac (s I I I I I WAVE REFRACTION ANALYSIS I CASE STUDY SITE #2 - KAILUA-LANIKAI, OAHU I 1, I I I I I I I I I I I TABLE 2- REFRACTION DATA FOR KAILUA-LANIKAI SITE WAVE APPROACH WAVE PERIOD RAY Ks Kr H/Ho N 12 1 1.243 1.615 2.007 N 12 4 1.189 0.605 0.719 N 12 8 1.230 1.075 1.322 N 12 12 1.266 0.797 1.009 N 12 16 1.201 1.252 1.503 N 12 20 1.092 0.432 0.472 NE 12 5 1.157 0.913 1.056 NE 12 10 1.150 0.858 0.986 NE 12 15 1.201 2.268 2.724 NE 12 20 1.271 0.781 0.993 NE 12 26 1.203 1.054 1.268 NE 12 31 1.278 1.052 1.344 E 12 5 1.222 1.539 1.881 E 12 10 1.189 0.968 1.032 E 12 15 1.170 0.978 1.144 E 12 20 1.178 0.810 0.954 E 12 25 1.201 1.088 1.307 E 12 30 1.206 0.813 0.980 N 8 1 1.073 0.466 0.500 N 8 5 1.031 1.125 1.160 N 8 9 1.000 0.860 0.860 N 8 12 1.029 0.997 1.026 N 8 15 1.009 1.170 1.180 N 8 18 1.029 0.861 0.886 NE 8 12 1.034 1.022 1.057 F 8 18 1.036 1.800 1.865 NE 8 24 1.050 0.816 0.857 NE 8 30 1.001 0.736 0.737 NE 8 36 1.024 0.908 0.930 NE 8 42 1.017 0.862 0.877 E 8 1 1.041 0.995 1.036 E 8 7 1.020 0.876 0.893 E 8 13 1.038 0.829 0.860 E 8 18 1.009 0.868 0.876 E 8 22 1.043 1.053 1.098 E 8 24 1.030 0.559 0.575 f t L rRELEPULU k STPERM RL. POINT @Tr >/ L-E (33EQ k-rlu I 41 WAVE P ICID - 1. 2ecar,d2 F"'r, ES C R L E WRIL 0 Hatero LOBO 4T ".-X K 5T k 31T- u B E T Z32T MELEFULU 3 STPERM DF '@'L A,- POINT 1-11--, 33EEPWFl;R ANCLEMEGW@ WAVE P IOD J2 gecandg SCRLE WR I LEA BT) :1 POINT 1000 f S 4 T !9 t-- e $ T e cl e ip e4 es L U T-. T iA 0 i- E 0 te i cl; H EP T k KMEL ULU t-t- 5TPEfit-I POINT T % -ICLEMEG TO -P 92 ---------------- 4--- Tjr:rpwn;R Fit WAVE P IOD 12 2ecoricI2 SC RL E I 13 Motoro ICIBO POINT t L t t L L L L u L*T T 2 T KTIELEPULU L k 5TP.[Flt-I RLPLR" POINT CO H Ll DEEN Rt LE(13EI-- WRVE P IOL - P seconds SC RL E 0 Me tero 1080 POJNT f I is /* I rip P T B.T F1 L /* u 74W Y KFIELEIIULU /A STPERM FiLF4-R-'-" Z/ Z --f P03NT fj,X R;P. ANCL -rp- H U BEEPW E(DEQ w = 45 WRVE: P RID - 6 cec-anda SC FIL E 13 Matero LOBO P DINT b E, Erl Im ------ K e4 L P- 15 W-07V 5-T e-c- t!5 T T 14 5TREHM t I'aELEPLILU POINT io DEEPWSZR ANCLEOIEQ TOHLJ z 90 E d 301 @CRLE WRILER HRV P 'on 6 2,-,*o P03NT 1000 I I I I I WAVE REFRACTION ANALYSIS I CASE STUDY SITE #3 - KUKUIULA-POIPU, KAUAI I I I I I I I I I I I I I FIGURE B-1-2 HURRICANE IWA WAVE REFRACTION AT 1800 HST, 23 NOV. 1982 T = 14.7 sec., 11 = 44.5 ft., A0 = 2370TN 0 N Wrom "fiurricane X7Ulnerabilitv s1tudy for vaua-;, Poi.pu and vicinity" bv Sea Enq-ineering Inc. and CharleE, L. EretFchnci .der, Jan. 193-6) SCALE: 1" 3.,333' 0 1 2 3000 ft. KUKUIULA LAWAI BAY DAY @4 11Z 01 /* POIPU 10 MAKAHUENA PT. 'X 11 lo-ol Z loll 1-1 A Y A@ FIGURE B-2-2 SCENARIO HURRICANE 4a: E-SE MODEL WANE REFRACTION (t = -1.4 hours) = 29.8 ft., A = 180 TN T = 12 sec., lio 0 N (From "Hurricane vulnerability study for Kauai, Poinu and vicintv" by Sea Engi.neering inc. and Charles L. Pretschneider, Jan 10,86) SCALE: V 3,333' 0 1 2 3000 ft. 0 p KUKUIULA F-' ro LAWAI BAY 0 Q) AY 1-sl@l p @l -P POIPU MAKANUENA PT. M Man M M M M M MM M FIGURE B-3-2 SCENARIO HURRICANE 41): E-SE WORST CASE WAVE REFRACTION (t =,-1.8 hours) N T 13.7 sec., 11, = 39.4 ft., A0 = 180OTN (From "fiurricane Vulneral-il-ity Stud-,;, for 1-nuai, Poipu and Vicinity" by Sea ungineerinq Inc. and Charlcs L. Bretschnel-der, Jan. 1986) SCALE: I" = 3,333' 0 1 2 3000 ft. -L-_j KUKUIULA 0 E: LAWAI BAY N Ri DAY 0 a) 44 @4 POTPU MAKAIJUENA PT. FIGURE B-4-2 SCENARIO HURRICANE 5a: S-SW MODEL WAVE REFRACTION (t = 0 hours) T = 12.7 sec., Ho = 33.4 ft.-, A0 = 185(TN (Prom "Hurricane Vulnerability Study for Kauai,roipu and Vicinitv" by Fea Engineering inc. ano' Char-les L. Brctscbneider, Jan. 19-8-6) SCALE: I" = 3J33' 0 1 2 3000 ft. L _A KUKUIULA 0 L W I BAY 0 Q) (A -' '@4 -4 4J Ul POIPU "@MAKAHUENA PT. L AWA @l a Y AY FIGURE B-5-2 SCENARIO HURRICANE 5b: S-SW WORST CASE WAVE REFRACTION (t = 0 hours) T = 15.3 sec. 110 = 48.7 ft, A0 = 187 0 TN (rrom "mirricane vulneral',4]i tv study for jauai, poipu and 1@7 i-ci nity" it by Sea T,2ngineerina Inc. and Cliarles L. Bretsc line ider Jan. 1986) SCALL: P 3,333' 0 1 2 3000 f t. -I_j 0 F; L AWA I E ;d DAY 0 Q) KUKUIUL DAY 4J POIPU MAKAHUENA PT. I i I .1 I I APPENDIX K AERIAL PHOTO ANALYSIS OVERLAY PLOTS I FOR CASE STUDY SITE #3 - KUKUIULA-POIPU, KAUAI I 11 I I I -1 I I I I I lll-@ LAWAI BEACH POIPU, KAUAI PARCEL BOUNDARY AERIAL PHOTO 3-4-88 BUILDING ROCKY SHORE SEAWALL EVE MENT - - - - BEACH TOE VEGETATION LINE - - - - - - AERIAL PHOTO 7-28-87 AERIAL PHOTO 6-16-81 AERIAL PHOTO 10-5-76 ............ AERIAL PHOTO 3-31-72 AERIAL PHOTO 12-3-62 AERIAL PHOTO 3-22-60 0 200 400 7 F@l GRAPHIC SCALE (feet) THE PREPARATION OF THIS MAP WA FINANCED IN PART BY THE COASTAL ZONE MANAGEMENT ACT a 1972, AS AMENDED, ADMINISTERED BY THE OFFICE OF OCEAN AND CD TAL RESOURCE MANAGEMENT, NATIONAL OCEANIC AND ATMOSPHER C ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCF@ THROUG THE OFFICE OF STATE PLANNING, STATE OF HAWAII EDWARD K. IMODA AND ASSOCIATES, INC. F KUHID AND KAHEKA BEACHES POIPU, KAUAI PARCEL BOUNPARY AERIAL PHOTO 3-4-88 BUILDING ROCkY SHORE SE 'ALL RE ETMENT BEAlH TOE VE ETATION LINE - - - - - - AERIAL PHOTO 7-28-87 KUHIO AERIAL PHOTO 6-16-81 BEACH AERIAL PHOTO 10-5-76 ............ AERIAL PHOTO 3-31-72 -z- AERIAL PHOTP 12-3-62 AERIAL PHOTO 3-22-60 KAHEKA BEACH 0 200 400 GRAPHIC SCALE (feet) THE PREPARATION OF THIS MAP WAS FINAN @@ED IN PART BY THE COASTAL ZONE MANAGEMENT ACT OF 1972@ AS AMENDED, ADMINISTERED BY THE OFFICE OF OCEAN AND COASTAL RE$OURCE MANAGEMENT, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, THROUGH THE OFFICE OF STATE PLANNING, STATE OF HAWAII EDWARD IL NOVA AND ASSOCIATES, INC. SHERATON BEACH POIPU, KAUAI PARCEL BOUNDARY AERIAL PHOTO 3-4-88 BUILDING ROCKY SHORE SEAWALL REVETMENT - - - - - BEACH TOE VEGETATION LINE - - - - - - AERIAL PHOTO 7-28-87 AERIAL PHOTO 6-16-81 AERIAL PHOTO 10-5-76 ............ AERIAL PHOTO 3-31-72 AERIAL PHOTO 12-3-62 AERIAL PHOTO 3-22-60 x 0 200 400 THE PREPARATION 13F THIS MAP WAS FINANIC IN PART BY THE @ S@D COASTAL ZONE MANAGEMENT ACT OF 197Z AMENDED, ADMINISTERED _S BY THE OFFICE OF OCEAN AND COASTAL RES URCE MANAGEMENT, GRAPHIC SCALE (f eet) NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, THROUGH THE OFFICE OF STATE PLANNING, STATE OF HAWAII EDWARD K. NODA AND ASSOCIATES, INC. POIPU BEACH PARK BEACH POIPU, KAUAI PARCEL BOUNDARY AERIAL PHOTO 3-4-88 BUILDING ROCKY SHORE SEAWALL REVETMENT 7 - - - BEACH TOE VEGETATION LINE - - - - - -AERIAL PHOTO 7-28-87 AERIAL PHOTO 6-16-81 AERIAL PHOTO 10-5-76 . .......... AERIAL PHOTO 3-31-72 AERIAL PHOTO 12-3-62 Q, AERIAL PHOTO 3-22-60 0 200 400 V-3 GRA@HIC SCALE (.Feet) THE PREPARATION OF THIS MAP WAS FINANCED IN PART BY THE COASTAL ZONE MANAGEMENT ACT OF 1972, AS AMENDED, ADMINISTERED BY THE OFFICE [IF OCEAN' AND COASTAL RESOURCE MANAGEMENT, NATIONAL OCEANIC AND AfMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERC@ THROUGH THE OFFICE OF STATE PLANNING, STATE OF HAWAII EDWARD r, HODA AND A880CIATES, INC. BRENNECKE BEACH POIPU, KAUAI PARCEL BOUNDARY AERIAL PHOTO 3-4-88 BUILDING ROCKY SHORE SEAWALL REVETMENT - - - - - BEACH TOE VEGETATION LINE - - - - - - AERIAL PHOTO 7-28-87 - - - - - - AERIAL PHOTO 6-16-81 AERIAL PHOTO 10-5-76 ............ AERIAL PHOTO 3-31-72 AERIAL PHOTO 12-3-62 - -- - -- AERIAL PHOTO 3-22-60 0 200 400 -i GRAPHIC SCALE (Feet) THE PREPARATION OF THIS MAP WAS FINANCED IN PART BY THE COASTAL ZONE MANAGEMENT ACT OF 1972, AS AMENDED, ADMINISTERED BY THE OFFICE OF OCEAN AND COASTAL RESOURCE MANAGEMENT, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, THROUGH THE OFFICE OF STATE PLANNING, STATE OF HAWAII EDWARD r- NODA AND A"OCIA'MS, WC. f - .1111011111111111@ 11111 1 3 6668-1-4104 0628 "