Rules Governing Special Management Areas and Shoreline Areas Within Community Development Districts and Practice and Procedures Before the Office of Planning and Sustainable Development

DEPARTMENT OF BUSINESS , ECONOMIC DEVELOPMENT , AND TOURISM

Amendme n t and Compilation of Chapter 15-150

Hawa i i Administrative Rules

August 25, 2021

SUMMARY

1. §§15-150- 2 , 6 , 9 , 13, 23, 25, 26 , and 30 are amended .

2 . Chapter 15-150 is compiled .

" HAWAII ADMINISTRATIVE RULES

TITLE 15

DEPARTMENT OF BUSINESS , ECONOMIC DEVELOPMENT , AND TOURISM

SUBTITLE 1

OFFICE OF PLANNING AND SUSTAINABLE DEVELOPMENT

CHAPTER 150

RULES GOVERNING SPECIAL MANAGEMENT AREAS AND SHORELINE AREAS WI THIN COMMUN I TY DEVELOPMENT DISTRICTS AND PRACT I CE AND PROCEDURES BEFORE THE OFF I CE OF PLANNING AND SUSTAI NABLE DEVELOPMENT

Subchapter 1 General Provisions

§15-150-1 Purpose §15-150-2 Definitions

Subchapter 2 Special Management Area

§15- 150 - 3 Adoption §15-150-4 Included area §15-150-5 Objectives and policies §15-150 - 6 Review guidelines §15-150-7 Assessment procedures and guidelines §15-150 - 8 General information §15- 150-9 Filing requirements §15-150-10 Assessment §15-150-1 1 Determination §15-150-12 Environmental assessment requirements §15-150- 13 Public hearings §15-150- 14 Hearin g officer §15-150-15 Action by the lead agency §15 - 150-16 Appeals

150-1

§15-150-17 Approval requ ired § 1 5- 150 - 18 Approval or exemption to precede other permits §15-150-19 Emergency approvals

Subchapter 3 Shoreline Area

§15-150-20 Lines establ i shed §15 - 150-21 Shoreline and setback l i nes to be shown on maps , etc. §15-150-22 Shoreline determination and certification §15-150-23 Prohibited removal §15-150-24 Prohibited structures §15-150-25 Permitted s t ructures §15-150-26 Variances §15-150-27 Review of plans §15-150-28 Application for variance §15-150-29 Environment al assessment §15-150-30 Public hearing §15-150-31 Decision

Subchapter 4 Enforcement

§15-150-32 Penalties §15-150-33 Enforcement of shoreline setbacks §1 5 -150-34 Issuance of notice of violation and order §15-150-35 Effect of the order ; right to a hearing §15-150-36 Judicial enforcement of the order §15-150-37 Judi cial enforcement of rules §15-150-38 Appeal in accordance with statute

Subchapter 5 Severability

§15-150-39 Inval i d provisions

Historical Note: This chapter is based substantially upon Chapter 1-2, HAR [Eff 5/24/90; R 2/25/2000] and the pract i ce and procedure pursuant to HRS§§ 91-2, 2 06E-8 . 5 , and chapter 205A, parts II and III 150 - 1 .

150-2

3 433

§15-150-2

SUBCHAPTER 1

GENERAL PROVISIONS

§15-15 0-1 Purpose . The purpose of this chapter is to govern the practice and procedure before the office of planning in determining approval of development in special management areas, and structures and activities within shoreline setback areas of community development districts . This chapter shall be liberally construed to preserve, protect , and where possible, to restore the natural r esources of the coastal zone of Hawa ii. 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 public access, by dedication or other means, to publicly owned or us ed beaches , recreation areas , and natural reserves is provided. [Ef f 2/25/2o oq< comp 4/17/2009 ; comp 11/30/2012 ; comp vCT 2 1 2021 J (Auth : HRS §§205A- 21 , 206E-8.5) (Imp: HRS §91-2 )

§ 1 5 -1 50 -2 Definitions . As used in this chapter, unless a different meaning clearly appears from the context: "Agency " means any agency , board , commission, department, or officer of a county government or the state government, including the a uthority as defined in part I of chapter 205A , Hawaii Revised Statutes (HRS) . "Applicant " means any individual , organization, partnership , or corporation , including any u t ility, and any agency of government . " Beach" means a coastal landform primarily composed of sand from eroded rock, coral , or shell material, or any combination thereof , that is es t ablished and s h ape d by wave action and tidal processes . " Beach " includes sand deposits in nearshor e submerged areas , or sand dunes or upland beach

150-3

§15-150-2

deposits landward of the sho r e line , that provide benefits for public use and recreation, for coastal ecosystems , and as a natural buffer against coasta l hazards . " Coastal hazards " means any tsunami , hurricane, wind, wave , storm surges , h i gh t ide, flooding , erosion, sea l e v e l rise, subsidence , or point and nonpoint source pollution. " Coastal zone management area " means all lands of the State and the area extending seaward from the shore line to the limit of the State ' s police power and management authority , including the United States territorial sea. " Coastal zone management program" means the comprehensive statement in words , maps , or other permanent media of communi cation , prepared , approved for submission , and amended by the State and approved by the United States government pursuant to Public Law No . 92-583 , as amended , and the federal r egulations adopted pursuant thereto, which describes objectives , policies , laws , standards, and procedures to guide and regu l a te public and private uses in the coastal zone management area. " Community development district " means an area designated by statute as authorized by chapter 206E , HRS . " County" means the county of Hawaii, the city and coun ty of Honolul u, the county of Kauai , or the county of Maui. " Crops " mean agricultural produce or parts of plants or trees cultivated for commercial or personal use, including but not limited to livestock . " 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, activiti es , or operations excluded in paragraph (2 ) . (1) " Development " includes but is not limited to the following : (A) The placement or erection of any solid material or any gaseous , liqu i d , solid, or thermal waste;

150-4

§15-150-2

(B ) Grading , removing , dredging , mi n ing, or extracting of a n y materials ; (C ) Change in the density or intensity of use of land , including but not limited to the divis i on or subdivision of land ; (D ) Change in the de n sity or intensity of use of water , ecology related thereto , or of access thereto ; and (E) Construction , reconstruction, or alteration of the size of any s t ructure . (2) " Development " does not include the following : (A) Construction or reconstruction of a single-family residence that is less than seven thousan d five hundred square feet of floor area, is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges , high tide, or shoreline erosion , and is not part of a larger development; (B) Repair or maintenance of roads and highways within existing rights-of-way; (C) Routi n e maintenance dredging of existing streams, channels, and drainage ways (D ) The repair and maintenance of underground utility lines, including but not limited to wate r , sewer , power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; (E) Zoning variances , except for h eight , density , parking, and shoreline setback; (F) Repair , mainte nance, or interior alterations to existing structures; (G) Demolition or removal of structures, except those structures located on any historic site as designated i n national or state registers; (H) The use of any land for the purpose of cultivating, p lanting , growing , and

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,., 43 3

§15-150-2

harvesting of plants, crops, trees, and other agricultural , horticul t ural, or forestry products or animal husbandry , or aquaculture or mariculture of plants or animals, or other agricultural purposes subject to review by the lead agency in accordance with paragraph (3); (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 l ots greater than twenty acres in size; (L) The subdivision of a pa rcel of land into four or fewer parcels when no associated construction activities are proposed , provided that the land which is subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels ; (M) Insta l lation of underground utility lines and appurtenant aboveground fixtures less t h an four feet in height along existing corridors ; (N) Structural and nonstructural improvements to existing singl e -family residences, where otherwise permissible; (0) Nonstructural improvements to existing commercial or noncommercial structures; and (P) Construct i on , ins tal lation, maintenance, r e pair, and replacement of civil defense wa rning or signa l devices and sirens. (3) Whenever the l ead agency finds that any use, activity , or operation excluded in paragraph (2 ) may have a cumulative impact , or a significant environmental or ecological effect on the special management area, that use, act ivit y , or operation shall be defined

150-6

§15-150-2

as " d eve lopment " for the purpose of this chapter . " Director" means the director of the office of planning and susta inable development, or authorized subordinate or designee . " Environme ntal Impact Statement " or " EIS " means an informationa l document prepared in compliance with the environment al quality commission ' s rules implementing chapter 343, HRS. " Floor area" is defined as in the ordinances of the county where the deve l opment is proposed . " Hardship " means that the applicant must show that : (1 ) The land in question cannot yield a reasonable return if used only for the purpose allowed by section 15-150-26; (2 ) The request of t h e applicant is due to u n ique c i rcumstan ces and not to genera l condit ions in the area so that t h e reasonab l eness of sect ion 1 5-150-26 is not drawn into question ; and (3 ) The use to be author i zed by the variance will not change the essential character of the area or be contrary to the i n tent or purpose of thi s chapter. " Hearing officer " means a person or persons designated and authorized by the lead agency to conduct an agency hearing for the purpose of taking testimony, to report and s ubmi t the findings a nd recomme ndations to the lead agency on matters within the jurisdiction of the lead agency pursuant to this chapter . " Land " means the earth, water , and air above , below, or on the surface . " Lead agency " means t h e office of planning and sustainable development. " 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 . " Shoreline " means the upper reaches of t h e wash of t h e waves , other than s t orm and sei smic waves, at

150 - 7

§15-150-2

hi gh tide during the season o f the year in which the h i ghest wash of the waves occurs , usually evidenced by the edge of vegetati on growth , or the upper limit of debris left by t h e wash of the waves . " Shore l ine area " mean s a l l of the lan d area between t h e shoreline setback line and mean sea l evel. " Sh orel i ne certifica tion " means a signed statement by the chairperson o f the board of land and natural resources that the shore l ine is as located and shown o n a map as of a certain date in accordance with sect i on 205A- 42 , HRS , and chapter 13-222, for shoreline certifications . " Shorel i ne setback line " means that lin e es t ablish ed in section 15-150-20 . " Shoreline survey" means a survey map showing the shoreline as determined by t he board of land and natural resources in accordance with section 205A-42 , HRS , and chapte r 13-222 , for shoreline certi f icat i ons. " Special management area " means the land extending inland from the shoreline as de li neated on maps file d with the cou nty . " Special management area minor approval " means an action by the lead agency authorizing developmen t , the valuation o f which i s not i n excess of $500 , 000 and which has no substantial adverse environmental or ecological effect , taking into account poten tial cumulative effects . " Specia l management area use approval " means an act i on by the lead agen cy authorizing d evelopment , the valuation of whi ch exceeds $500 , 000 or which may have a substantial adverse or ecological effect , taking into account potential cumulative effects. " Structure " includes , but is not limi ted to, any portion of any building, pavement , road , pipe , flume, utility line , fenc e , groin , wall , or revetment . "Va l uat i on " shall be determined by the lead agency and means the estimated cost to replace the structure in kind , based on current replaceme nt costs , or in the cases of other development , as defined in this section , the fair market value of the development.

150-8

§15-150-6

"Vegetation growth" means any p l ant , tree, shrub , grass, or groups, clusters, or paths of the same naturally rooted and growing. [Eff 2/25/2000; am and comp 4/17/2009; am and comnCf123flzn2f2; am and comp 11/30/2012; am and comp ] (Auth : HRS §§205A-l , 205A- 22 , 205A-41, and 206E-8 . 5) (Imp : HRS §§91-2 , 206E-8.5)

SUBCHAPTER 2

SPECIAL MANAGEMENT AREA

§15-150-3 Adoption . The special management area for community development districts shall be those established by the respective counties and shown on the special management area maps . [Eff 2}2~1,2000 ; comp 4 / 17/20 0 9 ; comp 1 1/30/2012; comp UC I 2 ) 2021 (Auth: HRS §206E-8 . 5) (Imp : HRS §§91-2 , 206E-8.5)

§15 - 150-4 Included area . The special management areas of the community development districts shall include those areas so designated on the maps. [Eff 2/25/2000; comp 4/17/2009 ; comp 11/30/2012; comp QC\ 2 1 2021 ] (Auth: HRS §206E-8 . 5) ( I mp : HRS §§91-2 , 206E-8 . 5)

§15-150-5 Objectives and policies . The objectives and policies of this chapter shall be those contained in section 205A-2, HRS . [E1cfcf 1 If 12,0..qo; comp 4/17/2009; comp 11/30/2012; comp lUll ] (Auth: HRS §206E-8 . 5) (Imp: HRS §§91-2, 206E-8 . 5)

§15-150-6 Review guidelines. The fol l owing guidelines shall be used by the lead agency for the review of developments proposed in the special management area :

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§15-150-6

(1) All development in the special management area shall be subject to reasonable terms and condi tions set by the l ead agency to ensure that : (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 locat ed public recreation areas and wildlife preserves are reserved ; (C ) Provisions are made for solid and liquid waste treatment, dispos i tion , and management that will minimize adverse effects upon special management area resources; (D) Alterations to existing landforms and vegetation, except crops, and construction of structures shall cause minimum adverse e ffect to water resources, beaches, coastal dunes, and scenic and recreational amenities and minimize impacts from floods, wind damage , storm surge , landsl ides, er osion, sea level rise , s i l tat ion, or fail ure in the event of earthquake ; and (E) Artificial light from flood lights , uplights , or spotlights used for decorative or aesthetic purposes does no t directly illuminate t he shoreline and ocean waters and is not directed to travel across p rope rty boundaries toward the shoreline and ocean wate rs , e x cept as provided in sections 205A- 30 . 5(b) and 205A-7l(b) , HRS. (2) No development shall be approved unless the lead agency h as first found that : (A) The development will not have any significant adverse environmental or ecological effect except as any adverse

1 50 -10

§15-150-6

effect is minimized to the extent practicable and clearly outweighed by public health and 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 t h e elimination of planning options ; and (B) The development is consistent with the objectives and policies established in section 205A-2 , HRS, and the special management area guidelines contained in section 205A-26, HRS . (3) The lead agency shall seek to minimize , where reasonable: (A) Dredging, filling or otherwise altering any bay , estuary, salt marsh, r i ver 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 area 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 t he sea from the state highway nearest the coast; (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 habi tats, or potential or existing agricu l tural uses

150 - 11

§15-150-6

of land. [Eff 2/2 5 /200 0 ; am and comp 4/ 17 /2009; comp rnJ.(30/2012; am and comp C 2 1 2021 (Auth : HRS §§205A-26 , 205A-30. 5 , 205A-71 , 206E-8 . 5) (Imp : HRS §§91-2 , 2 06E-8 . 5)

§ 15-150-7 Assessment procedures and guidelines . All developmen t wi thin the s p ecial manag e me nt area of a community development district shall be subject to assessment by the lead agency under t he provisions of this c hap ter . The assessment shall be pursuant to t he objectives , po licies, and guidelines of thi s chapt er . [Eff 2/25/2000 ; comp 4/ 17/2 009; comp 11 /30/2012 ; comp OCl 2 1 2021 l (Au th : HRS §§205A-2 7 , 206E- 8. 5 ) (Imp : HRS §§91-2, 206E-8.5)

§15 - 150 - 8 General i nfo rmat ion. Any applicant contemplating de v elopment within the special management area s hall contact the lead agency for in forma tion regarding procedures and general info rmation to assist in processi ng development applications. [Etft;'f /...2 ~I.Z.O.lQ.0; comp 4/17/2009; comp 1 1/30/ 2012 ; comp "l. l ZUi'.l] (Au t h : HRS §206E-8 .5) (Imp: HRS §§91 - 2 , 2 06E-8. 5 )

§15-150-9 Fil ing requirements . Before t he p r oposed development shal l be accepted for approval co n sideration , any applicant shall f ile with the lead agency the following : (1) A compl e ted application form that can be obtained from the lead agency ; (2 ) A tax map key identification of the property on which the app l icant p roposes its development ; (3 ) A plot pla n of t h e property , dra wn to scal e ; (4) A written description of the proposed d e v e lopmen t and a statement of objectives ,

1 50 - 12

§15-150-10

and an estimate of the valuation of the development ; (5) A written description of the affected environment that addresses the development's technical and environmental characteristics; (6) A shoreline certification if the pa rce l abuts the shoreline; provided that the lead agency may waive a shoreline certification requirement if: (A) The shoreline is fixed by an artificial structure or structures that have been approved by all appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure; or (B) The shoreline is fixed by natural stabi lized geographic features such as cliffs and rock formations; and (7) Any other relevant plans or information pertinent to the analysis of the development required by the lead age ncy . [Eff 2/25/2000; am and comp 4/17/2009; comp 11/30/2012 ; am and comp OCT 2 1 2021 ] (Au th : HRS §206E-8 . 5) (Imp : HRS §§91-2 , 206E-8.5)

§15 -150-10 Assessment . Upon compliance with t he foregoing require ments , the lead agency shall notify the applicant in writing within seven working days of receipt that the application has been accepted . The lead agency shall assess the proposal based on the following criteria: (1) The valuation or fair market value of the development ; and (2) The potential effects and the significance of each effect according to the objectives , policies, and r eview guidelines conta ined in sections 15-150-5 and 15-150- 6, and the provisions of chapter 343, HRS, and the environmenta l quality commission ' s EIS

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043'3

§15-150-10

rules . [Eff 2/25/2000; comp 4/17/2009 ; am and comp 11/30/2012 ; comp UL J 2 t 2021 (Au th : HRS §§205A-29 , 206E-8 . 5) (Imp : HRS §§91-2, 206E-8 . 5)

§15- 150 -11 Determination . The l ead agency shall, withi n thi rty days after submissi o n of the completed i n fo rmation for a proposed development, notify t he applicant in writing that the director has d etermi n ed t he proposal to : (1) Be exempt f rom the preparation of an environment al assessment under chapter 3 43, HRS, where the lead agency finds the proposal is e x e mpt under section 11- 200 - 8 of the envi ronmental quality commission's EIS rules; (2 ) Be exempt from the requirements of this subchap t e r; (3) Meet the requirements for t he special management a r ea minor approval, and issue a negative decl aration , which shall be file d with t h e office of e nvironmental quality control where the l ead agency finds that the proposed deve l opment : (A) Has a valuat ion or fa ir market value not i n e x cess of $500,000; and (B) Will not sign ificantly affect t he speci al manage ment area ; ( 4 ) Requi re a specia l management area us e approval, and shall issue a negative declaration which shall be filed with the office o f environmenta l quality con trol if s uch is required u nder chapter 343 , HRS , where the lead agency finds that t he proposal : (A) Has a va luation or f air market val ue i n excess of $500 , 000 ; and (B) Will n ot significantly affect the special management area as s upported by studies which, in the lead agency ' s

150-14

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§15-150-12

judgment , sufficiently describe the pot ential environmental effects on the s p ecial management area ; or (5 ) Requ ire a specia l ma n agement area u se approval , and shall i ssue an EIS preparation notice with the office of environmental qualit y control , regardless of the valuation or fair market value of the proposal where the lead agency f i nds that the proposal may significantly affect the special man agement area and that sufficient information to evalua t e this impact is not available . [Eff 2/25/2000 ; comp 4/17/2009 ; am and comp 1 1/30/2012 ; comp Z OCT 1 2021 l (Auth : HRS §§205A-26 , 205A-28 , 205A-30 , 206E-8.5) (Imp : HRS §§91-2 , 206E-8 . 5)

§15-150-12 Environmental assessment requirements . (a ) The negative declarati on and EIS preparation notices shall contain all the i nformation required to be p resented under the environmental quality commission ' s EIS rules . (b) The lead agency shall assure that the public is informed of the director ' s determinations on special management area use approvals through publication of notices in the Office of Environmental Qual ity Control Bulletin or another publication. (c) In processing a negative dec l aration or environmental impact statement preparat i on notice, the lead agency shall adhere to chapter 343, HRS, and the environmental quality commission ' s EIS rules . (d) Any development which has been assessed under the National Environmental Policy Act or chapter 343, HRS, and a negative declaration has been filed or a required EIS has been accepted may be waived from the environmental assessment requirements in this chapter . [Eff 2/25/2000 ; comp 4/17/2009 ; com 11/30/2012 ; comp OCT 2 1 202·) ] (Auth : HRS §§205A-27 , 206E-8 . 5) (Imp : HRS §§91-2 , 206E-8 . 5)

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§ 1 5-150-13

§15-150-13 Public hearings . (a) A public hearing shall be h eld on all proposed developments declared by the lead agency to require a special management area use approval. (b) The lead agency shall hold a publ ic hearing at a date set no l ess than t wenty- one nor more than sixty calendar days after the date the application has been accepted by the lead agency for consideration, unless the sixty-day period is waived by the applicant . (c) The applicant shall publish a notice in accordance with section 1-28.5 and sect ion 205A- 29, HRS, as amended , at least twenty calendar days in advance , stating the nature of the proposed development for which an application is made and the time and place of the public hearing. (d ) The applicant shall submit to the l ead agency proof that the not ice of public hearing was published correctly . (e) The applicant shall give notice of the public hearing by certified mail at le ast fifteen days prior to the public hea ring to the pertinent neighborhood boards, the owners of all property wi thin three hundred feet of the affected property, to all owners of the property described in the application , and to persons who have requested in writing to the lead agency to be notified of special management area use hearings or applications ; and at least five days prior to the public hearing , the applicant shall s ubmit to the lead agen cy proof that the notices in t his subsection were given. ( f ) A public hearing shall be held in the county where the development is proposed . Any such hear i ng may be held jointly and concurrently with any other hearing required for the same proposed development. (g) Dur ing the public hearing, i nterested persons shall be given an opportunity to provide testimony and/or ask questions. The hearings officer may require the applicant to answe r the questions . (h) Upon notification of a public hearing , the applicant shall pay the State a nonrefundabl e application f iling fee of $200 . Such filing fee shall

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§15-150-16

be waived for public agency projects. [Eff 2/25/2000 ; comp 4/17/2009; am and comp 11/30/2012; am and comp OCT~ 1 2021 ] (Auth : HRS §§205A-29, 206E- 8 . 5) (Imp: HRS §§91-2, 206E-8 . 5)

§15- 150-14 Hearing officer . (a) The lead agency may designate a hearing officer to conduct t h e public hearing. (b) Within t en working days from the public hearing , the hearing officer shall transmit findings and recommendations , copies of all submi tted written testimony , and a transcript of the t estimony presented at the pub lic hearing to the lead agency for its consideration and d ecision. [Eff 2J2flf00Q· comp 4/17/2009 ; comp 11/30/2012; comp UL, 4- 1 Z82] ] (Auth : HRS §§205A-29 , 206E-8 . 5) (Imp: HRS §§91-2 , 206E-8 . 5)

§ 1 5-150-15 Action by the lead agency. (a) Within sixty calendar days after the public hearing, unless an e xt ension is agreed to by the applicant, the lead agency shall approve with or without conditions or deny any application for development in a special management area . (b) Within ten working days from a determination pursuant to section 15 - 150-11(1 ) to (3 ) unless an e x tensio n is agreed to by the applicant , the lead agency shall grant or deny a special management area minor approval . [Eff 2Qtf/~0J0QO·zfomp 4/17/2009; comp 11/30/2012; comp '- l. ] (Auth : HRS §§205A-29, 206E-8.5) (Imp : HRS §§91-2, 206E- 8 . 5)

§15-150-16 Appeals . The public hearing shal l constitute a contested case from which a right to appeal exists under section 91-14, HRS. Any appeal shall be filed with the circuit court within thirty days after service of lead agency ' s final decision in

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§15-150 - 16

accordance with secti on 91- 1 4, HRS . [Ef f 2/25/2000; comp 4/1 7 /2009 ; am and comp 1 1/30/2012 ; comp Ul i ~ 1 2021 ] (Auth : HRS §§9 1- 9 , 206E- 8 . 5 ) (Imp: HRS §§9 1 -2 , 206E-8.5)

§15-150-1 7 Approval r equired. No development or structure shall be constru c t ed withi n t h e speci al management area withi n a community development district without first obta i ning a determination that the proposal is exempted or is approved pursuant to the provisions of this subchapter . [Eff 2/25/2000 ; comp 4/ 1 7/2009 ; comp 11/30/201 2 ; comp OCT~ 1 2021 (Auth : HRS §§205A-29 , 206E-8 . 5 ) (Imp : HRS §§91-2, 206E-8 . 5)

§15-150-18 Approval or exemption to precede other permits . No agency authorized to issue any permi ts or vari ances pertaining to any development within the special management area o f a community development district shal l authorize any development unless approval is first received pursuant to t h e provisions of t h is subchapter . For the purpose of this secti on , Hawai i Community Deve l opment Authority community development plans and state land use district boundary amendments are not permits . [Eff 2/25/26 QO ; ~co~ 4/17/2009 ; comp 11/30/2012; comp l J 4 1 ZU21 ] (Auth : HRS §§205A-29 , 206E - 8 . 5 ) (Imp : HRS §§91-2 , 206E-8 . 5)

§15-150-19 Emergency approvals . (a) In case of emergency repairs to existi n g public utilities including , but not limited to, flood control structures , water, sewer , gas , and electric transmission lines , and highways , the respective governmental agency or public uti l ity company is exempted from obtaining a special managemen t area use

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3 43 3 1 r

§15-150-22

approval purs u ant to the requirements of this chapter. Two reports of any repair p ro jects, valued in excess of $500 , 000, shall be recorded with the lead agency , one within three days after the start of the project and the other upon i ts completion . (b ) In the event a disaster is impending or has been declared under county law, or under chapter 127 or 128, HRS , the requirements of this subchapter shall be wa i ved . [Eff 2/25/2000 ; am and comp 4/17/2009; am and comp 11/30/2012 ; comp OC1 i 1 202l ] (Aut h: HRS §§205A-30 , 206E-8 . 5) (Imp : HRS §§91-2 , 206E-8 . 5 )

SUBCHAPTER 3

SHORELINE AREA

§15-1 50-20 Lines established . Shoreline setback lines are established in community development districts forty feet inland from the certified shoreline . [Eff 2/25J~~~p; ~~~ 4/17/2009; comp 11/30/2012 ; comp Ul,l 4 1 ,utl ] (Auth : HRS §§205A-43 , 206E-8 . 5) (Imp: HRS §§91-2 , 206E-8 . 5)

§15-150- 21 Shoreline and setbac k l ines to be shown on maps, etc . The shoreline and shoreline setback l ines shall be shown on all maps, plats, plans , construction drawings , documents , and any similar material. [EiQtf1lltffi0; comp 4/17/2009 ; comp 11/30/2012 ; comp ] (Auth: HRS §§205A-43 , 206E-8.5) ( Imp: HRS §§91-2 , 206E- 8.5)

§15- 150-22 Shoreline determination and certification. The shore line shall be determined and certified in accordance with section 205A-42 , HRS, and chapter 13-222 for shoreline certifications . [Eff 2/25/2000 ; comp 4/17/2009 ; comp 11/30/2012 ;

150-19

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§ 1 5-150-22

comp OC121 2021 (Auth : HRS §§205A-42 , 206E-8.5 ) (Imp : HRS §§91-2 , 205A-42, 206E-8.5)

§15-150-23 Prohibited removal . The mining or taking of sand, dead coral or cora l rubble , rocks , soil , or other beach or marine deposits from the shoreline area is prohibited with the following exceptions : (1) The inadvertent taking from the shoreline area of the mater i als , such as those inadvertently carried away on the body , and on clothes , toys , recreational equipment , and bags ; (2 ) Where the mining or taking is authorized by a variance pursuant to section 15-1 50-26; (3) The clearing of these materials from existing drainage pipes and canals and from the mouths of streams i ncluding clearing for the purposes under section 46-11 . 5, HRS, provided that the sand removed shall be placed on adjacent areas unless the placement would result in significant turbidity; (4) The cleaning of the shoreline area for state or county maintenance purposes, including the clearing for purposes under section 46- 12, HRS; provided that the sand removed shall be placed on adjacent areas unless the placement would result in significant turbidity; (5 ) The taking of driftwood, she l ls, beach glass, glass floats, or seaweed; (6 ) The exercise of traditional cu l tural practices as authorized by law or as permitted by the department pursuant to article XII, section 7, of the Hawaii State Constitution; or (7) For t h e response to a pub lic emergen c y or a state or local disaster . [Eff 2/25/2000; comp 4/17/2009 ; comp 1 1/30/201 2 ; am and comp

150 - 20

§15-150-25

OCt 2 1 2021 ] (Auth: HRS §§205A-44, 206E- 8. 5) (Imp: HRS §§91-2 , 206E-8 . 5 )

§15-150-24 Prohibited structures . Structures are prohibited in the shoreline area without a variance pursuant to this chapter exce pt as provided in section 15-150-25. [Eff 2 /2 5/2000 ; comp 4/17/2009; comp 1 1/30/2012; comp OCt 2 1 2021 ] (Auth : HRS §§205A-44, 206E-8 . 5 ) (Imp: HRS §§91-2 , 206E-8.5)

§15-150-25 Permitted structu res . Structures in the s horeline area shall not need a variance if : (1) They were completed prior to June 22 , 1970 ; (2) They rece ived e i ther a building permi t , board of land and natura l resources ' a pproval, or shoreline setback variance prior to June 16, 1989; (3) They are o u tside the shoreline area when they receive either a building permit or board of land and natura l resou rces' approval ; (4) The y are necessary for or ancillary to continuation of existing agriculture or a quacultur e in the shor eline a r ea on June 1 6, 1989; (5) Work being done cons ists o f maintenance, repair , and minor additions or a l terat ion s of legal boating, maritime, or watersports recreational facilities , which a r e publicly owned, and which result in little or no interference with natural shore line processes ; or (6) Work being done consists of repair of permitted structures ; provided that the permitted structures may be repaired, but shall not be enlarged, rebuilt , or replaced within the shoreli n e area without a variance . [Eff 2/25/2000 ; comp 4/1 7/2009 ;

150-21

§15- 150-25

comp 11/30/2012; am and comp OC121 2021 (Auth: HRS §§205A-44 , 206E-8 . 5) (Imp: HRS §§91-2 , 206E-8.5)

§15-150-2 6 Variances . (a) All structures and activities within the shoreline area, otherwise prohibited shall require a vari ance . A variance may be granted for a structure or activity otherwise prohibited in this subchapter if the director finds in writing, based on the record presented, that the proposed structure or activity is necessary for or ancillary to the following : (1) Cultivation of crops; (2) Aquaculture ; (3) Landscaping; provided that t h e lead agency 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 water sports recreational facilities ; (6) Facilities or improvements by public agencies or public utilities regulated under chapter 269 , HRS; (7) Private faci l ities 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 e rosion , or artificially fix the shoreline ; provided that the lead agency may consider any hardship that will result to the applicant if t h e facilities or improvements are not allowed within the shoreline area ; (9) Private facilities or improvements that may artificially fix the shorelin e; provided that the lead agency may cons ider hardship to the applicant i f the facilities or improvements are not allowed within t he

150-22

§15-150-27

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 i nterfere with existing recreational and waterline acti vities u nless the granting of the variance is clearly demonstrated to be in t h e 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 lead agen cy also finds that moving of sand will not adversely affect beach processes , wil l not diminish the size of a public beach, and wil l be necessary to stabilize an eroding shoreline . (b) No variance shall be granted unless appropriate conditions are imposed: (1) To maintain safe latera l 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 ris k 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 . [Eff 2/25/2000; am and comp 4/17/2009; comp 11/30/2012 ; am and comp OC'.'f 2· 1 2021 ] (Auth: HRS §§205A-46, 206E-8 . 5) (Imp: HRS §§91-2, 206E-8 .5 )

§15-150-27 Review of p l ans . The lead agency shall review and approve or disapprove all plans submitted in accordance with this subchapter . The l ead agency may require plans or data in addition to those specified . The lead agency may require changes in any

150 - 23

§15-150-27

plans or data submitted in order to obtain opt i mum compliance practicable to this subchapter that are reasonable and necessary . [Eff 2/25/200;.J_ ·..,. comp 4/17/2009 ; comp 11/30/2012 ; comp IJCt 2 1 2021 (Auth : HRS §§205A-4 3 , 206E-8 . 5) (Imp : HRS §§91-2 , 206E - 8.5)

§15-150-28 Application for va riance . (a) The lead agency shall receive and review plans for proposed structures, facilities , or act ivities that are prohib i ted within the shoreline area upon the s u bmission of adequate plans and data attached to a properly executed application form requesting a variance through the lead agency . (b ) A completed application shal l include t h e fil i ng requireme n ts contained in section 15-150-9 . (c) The application must be accompanied by a filing fee of $200 . In the event of a joint public hearing with a special management area use approval , only one filing fee shall be required . (d) The applicant must provide certification by the owner or lessee of the property authorizing and condoning the application. [Eff 2/25/2000; comp 4/.Q;I,_.7)2009 ; am and comp 11/30/2012 ; comp 11.,t 2 t 202J ] (Auth : HRS §§205A-43, 206E-8 . 5) (Imp : HRS §§91 - 2 , 206E-8.5)

§15-150 - 29 Environmental assessment . (a) The lead agency shall , within thirty days after submission of the completed information for a proposed shoreline area structure or activity , assess the environmental effects of the proposed structure or activity i n accordance with the environmental quality commi ssion ' s EIS rules implementing chapter 343 , HRS , and determine if an EIS is requ ired. The lead agency shall notify the applicant by certified mail of the environmental assessment determination .

150- 24

§15-150 - 30

(b) Whenever a special management area use approval and a shoreline variance are required for the same development proposal , the assessment and determination procedures and environmental assessment requirements contained in sections 15-150-10 , 15-150- 11, and 15-1 50-12 , apply . [Eff 2/25/2000; .,. comp 4/17/2009 ; comp 11/30/2012 ; comp OCt 21 2021 (Auth: HRS §§205A-43, 206E-8.5) (Imp: HRS §§91-2, 206E -8 . 5)

§15-150-30 Public hearing . The public hearing procedures contained in sections 15-150-13 and 15-150- 14 apply to shoreline variance applications, except that the lead agency may waive a public hearing prior to action on a variance application for : (1) Stabilization of shore line erosion by the moving of sand ent i rely on public lands; (2) Protection of a legal structure or public facility, including any facility owned by a public utility that is regulated pursuant to chapter 269, HRS, that does not fix the shoreline , under an emergency authorization i ssued by the lead agency ; provided that the structure or public faci lity is at ri sk of immediate d amage from shoreline erosion and the authorization does not exceed three years; (3) Other structures or activities, provided that no person or agency has requested a public hearing within twenty-five calendar days after public notice of the application ; or (4) Maintenance, repair , reconstruction , and minor additions or alterations of lega l boating, maritime, or watersports recreational facilities , that result in little or no interference with natural shoreline processes . [Eff 2/25/2000;

150-25

§15-150-30

comp 4/1 7 /2 009 ; comp 11/30/2012; am a nd comp OC121 2021] (Auth : HRS §§2 05A-43 . 5 , 206E - 8 . 5 ) (Imp : HRS §§91-2 , 206E-8 . 5 )

§15-150-31 Decision . Within s ixty days after the hearing on the applicat ion fo r a variance un less an ext ens ion i s agreed to by the applicant , the director shall render a wri tten dec ision for a pp roval or disapproval. In cases where action is r equ ired on both a sho rel i ne setback variance and a special management area use approval , t h e director may grant a va riance in conjunction with t h e special management area use approval. The provi sions conta ined in secti on 15-150- 16 apply to this section . [Eff 2/25/2006C'i" 2 l 2021 comp 4/17/2009 ; comp 1 1/30/2012 ; comp (Auth: HRS §§20 5A-43, 206E-8. 5) (I mp : HRS §§91 - 2 , 2 06E- 8 . 5 )

SUBCHAPTER 4

ENFORCEMENT

§ 15-1 50-32 Penalt ies . (a) Any person who violates subch apter 2 or 3 shall be l i able as follo ws: (1) For a c ivi l fine not to exceed $100 , 000; or (2 ) For the cost of returning the affected env ironmen t or eco l ogy within t he coastal management area t o the condition ex i sting before the violation . (b) In addition to any oth er penal ties , any pe r son who violates subch ap t er 2 or 3 shall be liable for a civil fine not to exceed $10 , 000 a day for each day the v iolation occur red or persists. (c) Any civil fine or other penal ty provided unde r t hi s chapter may be imposed by the circui t court or may be imposed by the lead agency after an opportunity for a hearing as provided in t hi s subchapter . Imposition of a fine sha l l not be a

150-26

§15-150-34

prerequisite to any civil fine or other injunctive relief ordered by the circuit court . [Eff 2/25/2000 ; am and comp 4/17/2009 ; comp 11/30/2012; comp OC1 l 1 2D21 (Auth: HRS §§205A-32 , 206E-8.5) (Imp : HRS §§91-2, 206E-8 . 5)

§ 1 5-150-33 Enforcement of shore line setbacks. (a) The lead agency shall enforce subchapter 3 . Any structure or activity prohibited by sections 15-150-23 and 15-150-24 , that has not received a variance pursuant to subchapter 3 or complied with conditions on a variance, shall be removed or corrected . No other state or county permit or approval shall be construed as a variance pursuant to subchapter 3 . (b) Where the shoreline is affected by a manmade structure that has not been authorized with government a g ency permi ts required by law , if any part of t he structure is on private property, t hen for purposes of enforcement of this section , the structure shall be construed to be entirely within the shoreline area . (c) The authority of the board of land and natural resources to determine the shoreline and enforce rules es tablished under section 1 83- 41, HRS, shall not be diminished by a manmade structure in vio lation of subchapter 3. [Eff 2/25/2000 · ~ . comp 4/17/2009; comp 11/30/2012; comp OC1 2 1 2021 (Auth : HRS §§205A-43 . 5 , 206E-8 . 5) (Imp: HRS §§91-2, 206E-8 . 5 )

§15- 150-34 Issuance of notice of violation and o rder. (a) If the director determines that any person is violating any provision of this chapter or any condi t ion of approval issued p ursuan t to this chapter , the lead agency may have the person served, by mail or personal delivery , with a notice o f violation and order. (b) The notice of violation shall i nclude at least the following in formation :

150 - 27

§15-150-34

(1) Date of the notice; (2) The name and address of the person noticed; (3) The section of the rules that has been violated; (4) The nature of the violation; and (5) The location and time of the vio lation . (c) The order shall advise the person that the order is cons i dered final twenty days after the date of its mailing or delivery unless written request for a hearing is mailed or delivered to the lead agency within the twenty days and may r equi re the person to do any or al l of the following : (1) Cease and desist from the violation ; (2) Correct t he violation at the person ' s own expense before a date s p ecified in the order; (3) Pay a civil fine not to exceed $100,000 in the manner, at the time, place, and before the date specified in the order ; (4) Pay a civil fine not to exceed $10,000 for each day in which the violation persists, in the manner and at the time and place specified in the order, i f the person has performed any development i n violation of this chapter; or (5) Appear before the le ad agency at a time and place speci fied in the order and answer the charges specified in the notice of violation. [Eff 2/25/2000; com:r;_ i./l7/2009; am and comp 11/30/2012; comp UCf l 1 2021 ] (Auth: HRS §§91-9, 205A-5 , 205A-32, 205A- 43.5, 206E - 8.5) (Imp: HRS §§91-2 , 206E-8.5 )

§15 - 150- 35 Effect of the order; right to a hearing . (a) The provisions of the order issued by the director pursuant to this subchapter shall become final twenty days after the date of the mailing or personal delivery of the order unless within t hose twenty days the person sub j ect to the order requests in writing a h eari ng before the lead agency . The

150-28

§15-150-37

request for a hearing shall be considered timely if the written request is delivered or mailed and postmarked to the lead agency within the twenty days . (b) Upon receipt of the writ t en request for hearing, the lead agency shall specify a time and place for the hearing, subject to the order, to appear and be heard. The hearing shall be conducted by t he lead agency in accordance with chapter 91, HRS. Following the hearing, the director may affirm , modify, or rescind the order. [Eff 2/25/2000; comp 4 / 17/20 0 9; comp 11/30/2012; comp OCi 2 1 2021 (Auth: HRS §§91-9, 91-9 . 5, 91-12 , 205A-32 , 206E-8 . 5) (Imp : HRS §§91-2, 206E - 8 . 5)

§ 1 5-150-36 Judicia l enforcement of the order. The director may institute a civil action in any court of competent jurisdiction to enforce any order issued pursuant to these rules . Where the civil action has been instituted t o enforce the civil fine imposed by the order, the director n eed only show that the notice of violation and order were served; a hear ing was held or the time gra nted to request a hear ing had expi red without a request; a civil fine was imposed; and that the fine imposed has not been paid . [Efhn6'-/65(~~QO ; comp 4/17/2009; comp 11/30/2012 ; comp Vl.f /,. ZUll J (Auth: HRS §§91-14, 205A-32, 206E-8.5) (Imp: HRS §§9 1 - 2, 206E-8 . 5)

§15-1 5 0-37 Judicial enforcement of rules. The director may institute a civil action in any court of competent jurisdiction for injunctive rel i ef to prevent violation of any provision of these rules or any condition attached to a n approved application issued in accordance with these rules in addition to any other remedy provided for under these rules. [Eff 2/25/200ac·~avmp2~ij 7/2009 ; comp 11/30/2012; comp f 4 I Ul ] (Auth : HRS §§205A- 33, 206E - 8 . 5) (Imp: HRS §§91-2, 206E-8.5)

150-29

§15-150-38

§15-150 - 38 Appeal in accordance with s t atute . If any person i s aggr i eved by the order issued by the director pursuant to this chapter, the person may appeal the order pursuant to chapter 91, HRS , provided that no provision of the order shall be stayed on appeal unless specifically ordered by a court of competent jurisdiction . [Eff 2/25/2000; comp 4/17/2009 ; comp 11/30/2012; comp OCT 2 1 2021 J (Auth : HRS §§91A-14 , 91-15 , 206E-8 . 5 ) (Imp: HRS §§91- 2, 206E-8 . 5)SUBCHAPTER 5

SUBCHAPTER 5

SEVERAB I LITY

§15-150-39 Invalid provisions. If any provision of this chapter or its appl ication to any person or circumstance is held invalid, the invalidity does not affect other provision or application of conditions of these rules which can be given effect without the invalid provision or application , and to this end the provisions of these rules are severable ." [Eff 2 I 25 I 2 Q.Q,Q,; cf~Z~ / 17/20 0 9 ; comp 11 / 30 /2 012; comp Ul.l 2 LU J ] (Auth : HRS §§91-16, 206E- 8 . 5) (Imp : HRS §§91-2, 206E-8.5 )

150-30

Amendments to and compi l ation of chapter 150, title 15 , Hawaii Administrative Rules , on t h e Summary Page dated August 25, 2021 were adopted on August 25, 2021 following a public hearing held on August 24, 2021 , after public notice was given in Honolu lu Star- Advert iser , Hawaii Tribune-Herald , West Hawaii Today, The Maui News , and The Garden Island on July 15, 2021 .

The amendments and compilation shall take effect ten days after filing with the Office of the Lieutenan t Governor.

MARY ALICE EVANS Director of Office of Planning and sustainab l e development

APPROVED AS TO FORM :

Deputy Attorney General

DAVID Y. ~ Governor t O 1 I\ \ 2 I State of Hawaii

Date :

Filed

9v: Ol\, l l 1:JO lZ.

3Ji.:1.:l0 150- 3 1 ·; )jQN >l3ti O~' UJVN .Hn 1! l