Guest Viewpoint for Sunday — December 11, 2005

• Citizens should protect their shoreline rights

Citizens should protect their shoreline rights

By Evelyn de Buhr and Caren Diamond

Whenever oceanfront property is to be developed — whether by a homeowner or by a business entity — the initial step in that building process is the shoreline certification. The homeowner or the developer hires a surveyor who determines a line using prerequisites outlined in HRS, Section 205 A-1, which states that the shoreline is to be delineated by “the upper reaches of the wash of the waves … at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the vegetation growth or the upper limits of the debris line, left by the wash of the waves.” The state Department of Land and Natural Resources then either certifies the surveyor’s line, or recommends adjustments.

Because the beaches in Hawai‘i belong to the people of the islands and are a public trust, the importance of shoreline certification cannot be exaggerated. It is the first line in the sand, so to speak, between private property and public space, the line from which all setbacks are determined and lateral beach access is maintained.

Very recently, it has come to the attention of citizens interested in access issues that, on numerous occasions, in what seems a pattern, the Kauai County planning director has been waiving the requirement to obtain shoreline certifications for coastal development, a practice contrary to state law and cause for serious concern. Before 1986, when shoreline certification was under the county’s purview, the Planning Director could legally waive a shoreline certification if the proposed construction was “clearly and unmistakably located on shoreline properties at a considerable distance from the shore-line setback.” However, the legislature amended the law and turned over the authority of shoreline certification to the DLNR, whose procedures allow for public input before a certification is granted. The county now has no jurisdiction over shorelines, and to the extent that Section 8 of the County Rules claims this authority for the county, it is superseded by the state’s authority. Therefore any shoreline “waivers” the planning director has issued are beyond his jurisdiction and arguably illegal since they do not conform to Hawai‘i law and sidestep the rights of citizens to participate in this most-important process.

Apparently this practice has become so prevalent that developers are now asking for the waivers. More troubling, illegally waiving shorelines exposes the county to liability and litigation, difficulties it seems our elected officials would not wish to add to the pile of lawsuits and legal headaches already facing the county. For example: The building of Waipouli Beach Resort commenced before the shoreline was certified on the condition the developer would move the structures if the certified shoreline were mauka of its proposed line, a line that is being appealed. In Hanalei, at the lot next to the pier, the shoreline was waived in exchange for a 60-foot setback even though the government’s own 1990 Kauai Shoreline Erosion Management Study recommended that all Hanalei setbacks be at least 75 feet “and located far enough landward of the shoreline so that shore protection structures will not be needed to protect them from erosion damage in the future.” We’re talking sea walls here, folks, and anyone who has followed the tragedy of sea walls in Anahola understands that this is not a desirable scenario for Hanalei.

Violations of this nature are serious breaches of the government’s responsibility to protect our resources and the rights of all individuals, in this case, the public’s right to go to the beach and future generations’ ability to do so as well. We urge all citizens to educate themselves about the importance of beach protection and shoreline access. Natural erosion of the coastline is inevitable, but erosion of citizen rights in the shoreline-certification process is inexcusable. People should call the mayor’s office or write a letter to the Planning Commission asking them to investigate the actions of the director.

  • Evelyn de Buhr is a Kilauea resident, and Caren Diamond is a resident of Ha‘ena

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