SB69

SECTION 1. The legislature finds that climate change and sea level rise pose current and long-term threats to the State's economy, sustainability, and security, and its residents' way of life. Comprehensive and appropriate sea level rise adaptation strategies are required at the state level to consistently and effectively safeguard critical assets in sea level rise exposure areas and to maintain necessary balance between environmental resources, economic interests, and public and private rights.

Act 32, Session Laws of Hawaii 2017, recognized climate change as one of the legislature's priority issues, and established the Hawaii climate change mitigation and adaptation commission (Commission). The Commission's 2017 Hawaii Sea Level Rise Vulnerability and Adaptation Report (2017 Report) provides recommendations for mitigating and adapting to future estimated sea level rise. The 2017 Report highlights that climate science and sea level rise projections continue to evolve, and that changes in projections for sea level rise made in between the Intergovernmental Panel on Climate Change's (IPCC) assessment reports should be considered as they become available.

Using the IPCC's Fifth Assessment Report, the 2017 Report estimates a potential 3.2 feet of sea level rise by 2100, the upper limit of the IPCC's "business-as-usual" greenhouse gas emissions scenario known as "RCP8.5." Of the four scenarios used by the IPCC, RCP8.5 projects the highest levels of sea level rise. The 2017 Report further notes that the "uncertainty of the projections increases with time as indicated by the increasing width [or range] of the projection after the year 2050" and that there is low confidence in the projections of the upper bounds of RCP8.5 in 2100. The IPCC's Sixth Assessment Report, published in 2022, found that RCP8.5 does not represent a typical business-as-usual projection and is only useful as a high-end, high-risk scenario.

The 2017 Report highlights that "for private properties impacted by sea level rise, the impact would be tremendous for families [as] well as county tax coffers." The extent of this impact was not assessed in the 2017 Report. Additionally, the 2017 Report did not assess the secondary and tertiary impacts on business and the tourism industry.

The legislature also finds that given the evolving nature of sea level rise projections, particularly with respect to the magnitude, timing, and likelihood of a particular level of sea level rise, consistency and balance are essential throughout the State. The use of high-end, high-risk scenarios, like RCP8.5, for regulation and policies, such as retreat, may not be appropriate in all contexts given the potential effects on commercial, industrial, and private property, and is most appropriate for critical infrastructure and public works. Accordingly, the legislature finds that if sea level rise predictions or models based on high-end, high-risk scenarios are used for parcel-level regulation, their use must be balanced with the constitutional rights and protections afforded to property owners. The legislature also finds that limiting and ameliorating the primary, secondary, and tertiary impacts of sea level rise is in the public interest.

The legislature further finds that the State's department of business, economic development, and tourism and office of planning and sustainable development, coastal zone management program's February 2019 Assessing the Feasibility and Implications of Managed Retreat Strategies for Vulnerable Coastal Areas in Hawaii Final Report (2019 Report) describes the sea level rise adaptation strategy of retreat as a "wicked" and complex problem that requires substantial further study. The 2019 Report found that "to rush haphazardly into retreat may waste precious and limited state, county, and public sources of funds and lands and cause undesirable litigation. There has not yet been an agreement/consensus reached of what needs to be retreated, where to retreat to and how much it will cost . . . To act on retreat without a clear, deliberate plan may derail retreat in the long-run to the severe and irreversible detriment of the State, its precious natural resources and citizens."

Accordingly, the legislature additionally finds that long-term sea level rise adaptation strategies, such as retreat, may require major land use changes. These strategies should be predicated on a study of potential impacts and should be fully vetted to ensure that such strategies are consistent with the State's land use policies and objectives. The legislature finds that it should continue to provide leadership and direction to the various counties to create a uniform, predictable, and consistent framework for regulating coastal areas.

Given the many complexities associated with retreat and the time that is required to better understand and develop consensus around the issues, the legislature finds that other adaptation strategies, such as accommodation, advance, and protection, may be more appropriate strategies in the short and intermediate terms (five to fifty years), especially where development that is vital to the State's economic resources may be impacted.

The purpose of this Act is to:

(1) Include the establishment of a consistent and balanced framework for developing and implementing sea level rise adaptation strategies as an objective of the coastal zone management program;

(2) Include the promotion of research, study, and understanding of the suitability and impacts of different sea level rise adaptations as a policy of the coastal zone management program;

(3) Include the maintenance of a balance between public and private interests in implementing sea level rise adaptation and consideration of all appropriate sea level rise adaptations as policies of the coastal zone management program;

(4) Include as a policy of the coastal zone management program that any construction on shoreline be allowed if it is determined to preserve, protect, or rehabilitate the beach or be considered vital development;

(5) Require the county planning commission to allow proposed development within the shoreline area and within the sea level rise exposure area under certain circumstances;

(6) Prohibit any policy or guideline for setting special area use permit application procedures that has the effect of a rule without complying with the rulemaking process;

(7) Preempt any rule, policy, or guideline inconsistent with the special management area guidelines;

(8) Allow counties to require that shoreline setback lines be established at greater distances in certain circumstances; and

(9) Provide that no variance be denied for maintenance, renovation, or repair of a lawful nonconforming structure with exceptions.

SECTION 2. Section 205A-22, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read as follows:

""Accommodate sea level rise" means to design or improve a structure in a manner that increases the structure's resiliency to sea level rise. "Accommodate" includes actions such as elevating structures or critical equipment, floodproofing, retrofitting or repurposing at or below-grade spaces, and using structures or materials to increase the strength of development to handle additional wave and flooding impacts, such as floodwalls and structures that can easily be removed during storms.

"Habitable structure" means a dwelling, as defined by applicable zoning ordinances.

"Rebuilding" means the reconstruction of a lawfully existing structure when the reconstruction is valued by a licensed professional engineer or architect at more than fifty per cent of the replacement cost of the structure.

"Repair" means the fixing, renovation, improvement, or restoration of any part of a lawfully existing structure, but not the entire structure, solely for the purpose of its maintenance and which does not result in an addition to, or enlargement or expansion of, the lawfully existing structure. "Repair" includes, but is not limited to alterations of floors, roofs, walls, or the supporting structure of a building or the rearrangement of any of its component parts. "Repair" does not include a repair or cumulative series of repairs to a structure over a two-year period, where the cumulative cost exceeds fifty per cent of the market value of the structure before the start of construction of the first improvement during that two-year period, excluding those repairs required for health, safety, or sanitation.

"Sea level rise exposure area" means the area mapped and otherwise used in peer-reviewed literature such as the Hawaii climate change mitigation and adaptation commission’s 2017 Hawaii Sea Level Rise Vulnerability and Adaptation Report or its most current iteration, as accessible within the Hawaii sea level rise viewer hosted by the Pacific Islands ocean observing system, and as may be updated to reflect best available science."

SECTION 3. Section 205A-1, Hawaii Revised Statutes, is amended by amending the definition of "agency" to read as follows:

""Agency" means any agency, board, commission, department, or officer of a county government or the state government, including the authority as defined [~~in part II.~~] in this section."

SECTION 4. Section 205A-2, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) Objectives.

(1) Recreational resources;

(A) Provide coastal recreational opportunities accessible to the public.

(2) Historic resources;

(A) Protect, preserve, and, where desirable, restore those natural 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, including reefs, beaches, and coastal dunes, from disruption and minimize 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 coastal hazards[.]; and

(B) Establish a consistent and balanced framework for developing and implementing sea level rise adaptation strategies.

(7) Managing development;

(A) Improve the development review process, communication, and public participation in the management of coastal resources and hazards.

(8) Public participation;

(A) Stimulate public awareness, education, and participation in coastal management.

(9) Beach and coastal dune protection;

(A) Protect beaches and coastal dunes for:

(i) Public use and recreation;

(ii) The benefit of coastal ecosystems; and

(iii) Use as natural buffers against coastal hazards; and

(B) Coordinate and fund beach management and protection.

(10) Marine and coastal resources;

(A) Promote the protection, use, and development of marine and coastal resources to assure their sustainability.

(1) Recreational resources;

(A) Improve coordination and funding of coastal recreational planning and management; and

(B) Provide adequate, accessible, and diverse recreational opportunities 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 restoration of coastal resources that have significant recreational and ecosystem value, including but not limited to coral reefs, surfing sites, fishponds, sand beaches, and coastal dunes, when these resources will be unavoidably damaged by development; or requiring monetary compensation to the State for recreation when restoration 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) Ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources;

(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, and 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 land and natural resources, and county authorities; and crediting that 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 remains and artifacts or salvage operations; and

(3) Scenic and open space resources;

(A) Identify valued scenic resources in the coastal zone management area;

(B) Ensure that new developments are compatible with their visual environment by designing and locating those developments to minimize the alteration of natural landforms and existing public views to and along the shoreline;

(D) Encourage those developments that are not coastal dependent to locate in inland areas;

(4) Coastal ecosystems;

(A) Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;

(B) Improve the technical basis for natural resource management;

(C) Preserve valuable coastal ecosystems of significant biological or economic importance, including reefs, beaches, and dunes;

(D) 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

(E) Promote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystems and maintain and enhance water quality through the development and implementation of point and nonpoint source water pollution control measures;

(5) Economic uses;

(A) Concentrate coastal dependent development in appropriate areas;

(B) Ensure that coastal dependent development and coastal related development are located, designed, and constructed to minimize exposure to coastal hazards and adverse social, visual, and environmental impacts in the coastal zone management area; and

(C) Direct the location and expansion of coastal development to areas designated and used for that development and permit reasonable long-term growth at those areas, and permit coastal development outside of designated areas when:

(i) Use of designated locations is not feasible;

(ii) Adverse environmental effects and risks from coastal hazards are minimized; and

(iii) The development is important to the State's economy;

(6) Coastal hazards;

(A) Develop and communicate adequate information about the risks of coastal hazards;

(B) Promote research, study, and understanding of the suitability and impacts of different sea level rise adaptation strategies, including how to balance social, environmental, economic, and legal impacts;

[~~(B)~~] (C) Control development, including planning and zoning control, in areas subject to coastal hazards;

[~~(C)~~] (D) Ensure that developments comply with requirements of the National Flood Insurance Program; and

[~~(D)~~] (E) Prevent coastal flooding from inland projects;

(7) Managing development;

(A) Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;

(B) Facilitate timely processing of applications for development permits and resolve overlapping or 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 terms understandable to the public to facilitate public participation in the planning and review process;

(D) Maintain a balance between public and private interests when implementing sea level rise adaptation strategies; and

(E) Consider all appropriate sea level rise adaptation strategies, such as accommodation, advance, and protection;

(8) Public participation;

(A) Promote public involvement in coastal zone management processes;

(B) Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with coastal issues, developments, and government activities; and

(9) Beach protection;

(A) Locate new structures inland from the shoreline setback to conserve open space, minimize interference with natural shoreline processes, and minimize loss of improvements due to erosion;

(B) Prohibit construction of private shoreline hardening structures, including seawalls and revetments, at sites having sand beaches and at sites where shoreline hardening structures interfere with existing recreational and waterline activities[;], unless those structures are determined to preserve, protect, or rehabilitate the beach or vital development such as soft or hybrid shoreline protection structures;

(C) Minimize the construction of public shoreline hardening structures, including seawalls and revetments, at sites having sand beaches and at sites where shoreline hardening structures interfere with existing recreational and waterline activities[;], unless those structures are determined to preserve, protect, or rehabilitate the beach or vital development such as soft or hybrid shoreline protection structures;

(D) Where conditions are suitable, and where appropriate, to allow for the construction of beach stabilization structures (such as, groins or soft or hybrid shoreline protection structures and other activities (such as beach nourishment) for the protection, preservation, or rehabilitation of beaches or vital development;

[~~(D)~~] (E) Minimize grading of and damage to coastal dunes;

[~~(E)~~] (F) Prohibit private property owners from creating a public nuisance by inducing or cultivating the private property owner's vegetation in a beach transit corridor; and

[~~(F)~~] (G) Prohibit private property owners from creating a public nuisance by allowing the private property owner's unmaintained vegetation to interfere or encroach upon a beach transit corridor; and

(10) Marine and coastal resources;

(A) Ensure that the use and development of marine and coastal resources are ecologically and environmentally sound and economically beneficial;

(B) Coordinate the management of marine and coastal resources and activities to improve effectiveness and efficiency;

(C) Assert and articulate the interests of the State as a partner with federal agencies in the sound management of ocean resources within the United States exclusive economic zone;

(D) Promote research, study, and understanding of ocean and coastal processes, impacts of climate change and sea level rise, marine life, and other ocean resources to acquire and inventory information necessary to understand how coastal development activities relate to and impact ocean and coastal resources; and

(E) Encourage research and development of new, innovative technologies for exploring, using, or protecting marine and coastal resources."

SECTION 5. Section 205A-26, Hawaii Revised Statutes, is amended to read as follows:

"§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 that 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, beaches, coastal dunes, and scenic and recreational amenities and minimize impacts from floods, wind damage, storm surge, landslides, erosion, sea level rise, 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 significant adverse environmental or ecological effect, except as any adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Those adverse effects shall include but not be limited to the potential cumulative impact of individual developments, each of which taken by itself might not have a significant 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, community plan, and zoning; provided that a finding of consistency shall not preclude concurrent processing where a general plan, community plan, or zoning amendment 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 that would reduce the size of any beach or other area usable for public recreation;

(C) Any development that 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 that 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 that 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.

(4) The authority shall allow proposed development in the special management area under the following criteria:

(A) Within the shoreline area:

(i) For development related to existing structures that have not been damaged by coastal hazards development, including repairs and rebuilding, development is allowed as permitted under part III of this chapter;

(ii) For development related to existing structures that have been damaged by coastal hazards if the damage caused by coastal hazards is fifty per cent or less of the replacement cost of the structure as of the time the damage occurred, then repairs are permitted under part III of this chapter or if the damage caused by coastal hazards is greater than fifty per cent of the replacement costs of the structure as of the time the damage occurred, then rebuilding or repair is permitted only if the structure is reasonably adapted to accommodate sea level rise; and

(iii) For development related to new structures within the shoreline area, development is allowed as permitted under part III of this chapter; provided that habitable structures are reasonably adapted to accommodate sea level rise;

(B) Within the sea level rise exposure area, the authority shall discourage development of new habitable structures; provided that development shall be allowed if an applicant demonstrates that the risks of damage to the proposed new habitable structure are substantially mitigated by showing one or more of the following:

(i) That the shoreline fronting the proposed new habitable structure is not erodible because of natural or manmade shoreline protection, including but not limited to shorelines with rocky headlands, rock cliffs, and permitted structures;

(ii) The proposed new habitable structure is, or will be, adapted to accommodate sea level rise; or

(iii) The proposed new habitable structure is not likely to be substantially adversely impacted or damaged by sea level rise during its useful life; and

(C) Within the special management area, development is allowed as permitted under part II of this chapter. This subsection shall not preclude or diminish existing constitutional rights and protections, including the right to seek just compensation for taking of property."

SECTION 6. Section 205A-29, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The authority in each county, upon consultation with the central coordinating agency, shall adopt rules under chapter 91 setting 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 shall provide for adequate notice to individuals whose property rights may be adversely 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 public notice that is, at a minimum, circulated throughout the county 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 adopted by the authority shall be consistent with the objectives, policies, and special management area guidelines provided in this chapter. No policy or guideline that has the effect of a rule shall be adopted without complying with the applicable rulemaking process. Any rule, policy, or guideline adopted that is inconsistent with the objectives, policies, and special management area guidelines provided in the chapter is expressly preempted. Action on the special management permit shall be final unless otherwise mandated by court order."

SECTION 7. Section 205A-44, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Except as provided in this section, structures are prohibited in the shoreline area without a variance pursuant to this part. Structures in the shoreline area shall not need a variance if:

(1) They were completed prior to June 22, 1970;

(2) They received either a building permit, board approval, or shoreline setback variance prior to June 16, 1989;

(3) They are outside the shoreline area when they receive either a building permit or board approval;

(4) They are necessary for or ancillary to continuation of existing agriculture or aquaculture in the shoreline area on June 16, 1989;

(5) They are minor structures permitted under rules adopted by the department which do not affect beach processes or artificially fix the shoreline and do not interfere with public access or public views to and along the shoreline; or

(6) Work being done consists of maintenance, repair, and minor additions or alterations of legal boating, maritime, or watersports recreational facilities, which are publicly owned, and which result in little or no interference with natural shoreline processes;

provided that permitted structures, including lawful nonconforming structures, may be repaired, renovated, and maintained, but shall not be enlarged, rebuilt, or replaced within the shoreline area without a variance[.] and any permit required under part II of this chapter."

SECTION 8. Section 205A-45, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The several counties through rules adopted pursuant to chapter 91 or ordinance may require that shoreline setback lines be established at distances greater than that established in this part[.]; provided that all shoreline setback lines shall be measured from the certified shoreline, as determined pursuant to part II of this chapter, and shall not be based on any projection or model relating to sea level rise; provided further that shoreline setback lines may be calculated from the certified shoreline using historic data such as historic erosion rates."

SECTION 9. Section 205A-46, Hawaii Revised Statutes, is amended to read as follows:

"§205A-46 Variances. (a) A variance may be granted for a structure or activity otherwise prohibited in this part if the authority finds in writing, based on the record presented, that the proposed structure or activity is necessary for or ancillary to:

(1) Cultivation of crops;

(2) Aquaculture;

(3) Landscaping; provided that the authority finds that the proposed structure or activity will not adversely affect beach processes and will not artificially fix the shoreline;

(4) Drainage;

(5) Boating, maritime, or watersports recreational facilities;

(6) Facilities or improvements by public agencies or public utilities regulated under chapter 269;

(7) Private facilities or improvements that are clearly in the public interest;

(8) Private facilities or improvements that will not adversely affect beach processes, result in flanking shoreline erosion, or artificially fix the shoreline; provided that the authority may consider any hardship that will result to the applicant if the facilities or improvements are not allowed within the shoreline area;

(9) Private facilities or improvements that may artificially fix the shoreline; provided that the authority may consider hardship to the applicant if the facilities or improvements are not allowed within the shoreline area; provided further that a variance to artificially fix the shoreline shall not be granted in areas with sand beaches or where artificially fixing the shoreline may interfere with existing recreational and waterline activities unless the granting of the variance is clearly demonstrated to be in the interest of the general public; or

(10) Moving of sand from one location seaward of the shoreline to another location seaward of the shoreline; provided that the authority also finds that moving of sand will not adversely affect beach processes, will not diminish the size of a public beach, and will be necessary to stabilize an eroding shoreline.

(b) Hardship shall be defined in rules adopted by the authority under chapter 91. Hardship shall not be determined as a result of county zoning changes, planned development permits, cluster permits, or subdivision approvals after June 16, 1989, or as a result of any other permit or approval listed in rules adopted by the authority.

(1) To maintain safe lateral access to and along the shoreline or adequately compensate for its loss;

(2) To minimize risk of adverse impacts on beach processes;

(3) To minimize risk of structures failing and becoming loose rocks, sharp or otherwise dangerous debris, or rubble on public property; and

(4) To minimize adverse impacts on public views to, from, and along the shoreline.

(d) No variance shall be denied for the maintenance, renovation, or repair of a lawful nonconforming structure unless the authority finds that the proposed maintenance, renovation, or repair would substantially adversely affect public health or safety and the effects cannot reasonably be mitigated."

SECTION 10. Section 205A-49, Hawaii Revised Statutes, is amended to read as follows:

"§205A-49 Adoption of rules. Each agency charged with carrying out this part shall adopt rules necessary to implement or comply with this part by July 1, 1990. All rules shall be adopted under chapter 91. No agency shall adopt policies or guidelines that have the effect of rules without complying with rulemaking process under chapter 91."

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	69
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII