New rules curbing Hawaii beach barriers are further delayed

New rules cracking down on sandbags and so-called burritos that have come to litter Hawaii’s coastlines continue to face delays, this time as they undergo a legal review.

The Department of Land and Natural Resources’ Office of Conservation and Coastal Lands announced in December 2020 that it planned to revise its administrative rules governing the emergency approvals. But after delays in finalizing them, they’ve now been parked at the state Attorney General’s Office for the past seven months.

Gary Yamashiroya, special assistant to the attorney general, said he couldn’t provide an estimate of when his office will complete its review, which he described as “comprehensive,” but said hopefully it will be soon.

OCCL will then need to seek approval from the seven-member Board of Land and Natural Resources to hold statewide public hearings on the proposed rule changes. The public will have the opportunity to comment on the rules, which are subject to revision. The rules will then need to go back to the Land Board for approval before being again reviewed by the Attorney General’s Office. The governor must then sign off on them.

The Attorney General’s Office declined the Honolulu Star-Advertiser’s request for a copy of the draft rules, saying the document was subject to attorney-client privilege. But they are expected to make it much harder for coastal property owners to receive emergency approvals for sandbags and other shoreline-
hardening structures, particularly when their homes, hotels, condominiums or businesses are threatened by ongoing coastal erosion.

OCCL Administrator Michael Cain told the Star-
Advertiser during an interview earlier this summer that he was eager for the proposed rules to be publicly released. “I think they will address many of the concerns that people have,” he said.

“We want to differentiate between immediate emergencies and ongoing, unmanaged, hazardous conditions. The emergency permits, they are designed for like rockfall mitigation, where the (emergency) is immediate.”

OCCL said in December 2020 that it planned to revise the administrative rules relating to emergency permits following an investigation by the Star-Advertiser and ProPublica that found the department had issued dozens of emergency permits over the past two decades to private property owners whose homes and hotels were imminently threatened by the ocean. Under current rules, property owners are allowed to keep the emergency protections in place only temporarily, but state officials had allowed walls of sandbags to remain in front of some properties for years, and even decades, after issuing repeated extensions or even losing track of them.

Coastal scientists have said that the structures, which can cost property owners tens of thousands of dollars, can be just as damaging as seawalls, which have contributed to major losses of prized beaches throughout the state. As waves hit a hardened shoreline, they claw away at the sand, causing beaches to disappear. Some of the most visible effects of this can be seen along Lanikai Beach, Waikiki and stretches of coastline along West Maui.

Beach loss is expected to grow dramatically as Hawaii faces sea level rise due to climate change, with local scientists warning that the state will be down to just a handful of healthy beaches if homes, hotels, businesses, roads and other infrastructure aren’t removed or relocated from the coastline. In order to survive, Hawaii’s beaches need to be able to move inland.

DLNR’s issuance of the emergency permits to protect property owners from coastal erosion had flown largely under the radar, only requiring the director of DLNR to sign off on them. Increasingly, property owners had used those permits to install expensive “burritos,” which include heavy black tarps anchored by rows of long, heavy sandbags.

Typically, property owners face stringent hurdles in getting shoreline hardening structures approved by the Land Board, which has a “no tolerance” policy for new seawalls. The state’s other environmental laws, including Act 16, also largely restrict the structures. The emergency permits sidestepped the much more rigorous process, which includes an environmental review, public hearing and Land Board approval.

While the revised administrative rules have proceeded slowly, OCCL has for the most part stopped issuing the permits. Property owners who were granted the permits in the past have refused to remove them after they expired, and OCCL has become increasingly embroiled in enforcement actions, particularly along Oahu’s North Shore.

Cain, who recently took over as OCCL administrator, told the Land Board in July, as he briefed it on the status of the expired permits, that his division would hold strong to its mission of protecting natural resources and conservation land.

“Our job is to protect the public resources. That is a strong bias,” said Cain. “I’m not here to protect real estate. I’m here to protect the beach.”