INDEX - DEVELOPMENTwww.islandbreath.org ID# 0402-01
SUBJECT: KAUAI SHORELINE PROTECTION
SOURCE: JUAN WILSON email@example.com
POSTED: 2 January 2004 - 10:30am
Have We Forgotten the Special Management Area (SMA)?
The Special Management Area
The following two segments of text are from the Hawaii Department of Business, Economic Development & Tourism's Website. It is not without irony they summarize the purpose and goals of what should be a powerful tool for environmentalists wishing to stem the tide of uncontrolled commercial growth in Hawaii.
The Hawaii Coastal Zone Management Program
Enacted as Chapter 205A, HRS, the Hawaii Coastal Zone Management (CZM) Program was promulgated in 1977 in response to the Federal Coastal Zone Management Act of 1972. The CZM area encompasses the entire state including all marine waters seaward to the extent of the state's police power and management authority, including the 12-mile U.S. territorial sea and all archipelagic waters. The program is built upon ten policy areas:
To provide coastal recreational opportunities accessible to the public and protect coastal resources uniquely suited for recreational activities that cannot be provided elsewhere.
To 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.
Scenic and Open Space Resources
To protect, preserve, and where desirable, restore or improve the quality of coastal scenic and open space resources.
To protect valuable coastal ecosystems, including reefs, from disruption and minimize adverse impacts on all coastal ecosystems.
To provide public or private facilities and improvements important to the state's economy in suitable locations; and ensure that coastal dependent development such as harbors and ports, energy facilities, and visitor facilities, are located, designed, and constructed to minimize adverse impacts in the coastal zone area.
To reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, subsidence, and pollution.
To improve the development review process, communication, and public participation in the management of coastal resources and hazards.
To stimulate public awareness, education, and participation in coastal management; and maintain a public advisory body to identify coastal management problems and provide policy advice and assistance to the CZM program.
To protect beaches for public use and recreation; locate new structures inland from the shoreline setback to conserve open space and to minimize loss of improvements due to erosion.
To implement the state's ocean resources management plan.
Other key areas of the CZM program include: a permit system to control development within a Special Management Area (SMA) managed by the Counties and the Office of Planning; a Shoreline Setback Area which serves as a buffer against coastal hazards and erosion, and protects view-planes; and the Marine and Coastal Affairs. Finally, a Federal Consistency provision requires that federal activities, permits and financial assistance be consistent with the Hawaii CZM program.
Special Management Area (SMA)
The Special Management Area (SMA) and Shoreline Setback Area are designated for more intensive management by the four counties. The SMA originally encompassed all lands extending not less than 100 yards inland from the shoreline. The shoreline is defined as the upper reaches of the wash of the waves (other than storm or seismic waves) at high tide during the season of the year in which the highest wash of the waves occurs. The shoreline is usually evidenced by vegetation growth, or the upper limit of debris left by the wash of waves.
In some areas, the SMA's extend several miles inland to cover areas in which coastal resources are likely to be directly affected by development activities, such as Kawainui Marsh on Oahu and Waipio Valley on the Big Island. The Counties may amend their boundaries to achieve the CZM objectives and policies. Amendments removing areas from an SMA are subject to state review for compliance with the coastal law.
No development can occur in the SMA unless the appropriate county (or for developments in the Community Development Districts, the Office of Planning) first issues a permit. Development is defined to include most uses, activities and operations on land and in the water. For more information, please consult with the county planning departments on Kauai, Maui, Hawaii, and the Department of Land Utilization on Oahu.
On Kauai The SMA is Turned Upside Down
It has become the rule throughout the state of Hawaii that the county planning commissions ignore the guidelines and restrictions of the SMA and permit abominable projects that disfigure the shoreline, decrease public access and damage the environment.The Kauai Planning Commission routinely ignores the intent of the CZM and SMA regulations.
EXAMPLE 1) Kauai Loses in Court
Case No. 7694. Supreme Court of Hawai'i. Dec. 6, 1982.
PLANNING COMMISSION and Planning Department of the County of Kauai Defendant
The Syllabus by the Court states that
• The declared policy of the Coastal Zone Management Act, HRS Chapter 205A, is to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawaii.
• The implementation of the policy of the Coastal Zone Management Act has been delegated in large part to the counties. State primacy nevertheless has been retained as HRS §§ 205A-4 and 205A-28make clear.
• The legislature has sought to maintain the integrity of its declared policy by providing guidelines in HRS § 205A-26 to be followed by the counties in reviewing applications for special management area use permits.
• Where a county agency that has been delegated authority to pass on applications for special management area use permits exercises such authority inconsistently with the guidelines and restraints delineated in HRS § 205A- 26, the grant of the permit cannot stand.
EXAMPLE 2) Traffic Meltdown in Kapaa
Another example is the recent approval to permit construction in Kapaa of nearly 300 vacation timeshare units as well as wedding chapel facilities on open acreage along the shore opposite Kauai Shopping Village (where Papaya's Health Food Store is located. This project will have immediate negative affects on the site, Kapaa and the whole island of Kauai. It is a mindless development and will be the cause of a continuing meltdown at the worst traffic chokehold on the island.
A Weapon on Our Side
Readers are encouraged to use the SMA regulations to beat back negative development proposals. Let's hold the Kauai County Planning Commissioners feet to the fire and force them to follow CZM and SMA guidelines set up by the state. The following material is from the Maui County Planning Commission Regulations for Permits in the SMA. These regulations conform to the intent of the State SMA intentions (but are ignored and routinely subverted on Maui for the sake of speculative reale state profits). Readers can use the points in these regulations to test whether a permit should be issued on SMA land. We will publish Kauai County's interpretation of the law when we can get a copy.
Applicable Regulations: Special Management Area Use Permit
Standards for reviewing a special mangagement area (SMA) application are found under HRS 205A-26 and 12-202-10 and 12-202-11 of Chapter 202, Special Mangement Area (SMA) Rules of the Maui Planning Commission.
In evaluating an action the following factors, but not limited to same, may constitute a significant adverse effect on the environment:
A. Involves an irrevocable commitment to loss or destruction of any natural or cultural resources;
B. Significantly curtails the range of beneficial uses of the environment;
C. Conflicts with the Couty's or the State's long-term enviromental 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 increased effects on public facilities, streets, drainage, sewage, and water systems, and pedestrian walkways;
F. In itself has no significant adverse effect but cumulatively has considerable effect upon the environment or involves a commitment ofr larger actions;
G. Substantially affects a rare, threatened, or endangered species of animal or plant, or its habitat;
H. Is contrary to the state plan, county's general plan, appropriate community plans, zoning and subdivision ordinances;
I. Detrimentally affects air or water quality or ambient noise levels;
J. Affects an environmentally sensitive area, such as flood plain, shoreline, tsunami zone, erosion-prone area, geologically hazardous land, estuary, fresh waters or coastal waters;
K. Substantially alters natural land forms and existing public views to and along the shoreline; or
L. Is contrary to the objectives and policies of chapter 205A, HRS.
The following guidelines shall be used by the Authority in reviewing developments within the special management area:
1. All development in the SMA shall be subject to reasonable terms and conditions set forth by the authority 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, dispositon, and management which will minimize adverse effects upon special management area resouces; and
D. Alterations to existing land forms and vegetation, except crops, and construction of structures shall cause minmum adverse effect to water resources and scenic and reacreational amenities and minumum danger of floods, wind damage, storm surge, landslides, erosion, siltation, or failure in the event of earthquake.
2. No development shall be approved unless the Authority has first found that:
A. 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 interest. 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. The development is consisten with the objectives, plicies, and special mangement 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 concurrent processing when a general 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 which would reduce the size of any beach or other area usable for public reacreation;
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 twoard 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 viible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential or existing agricultural uses of land.