Rule changes for Hawaii oceanfront property owners questioned

Proposed state rules governing emergency permits for sandbags and so-called burrito systems installed by property owners to protect their homes and hotels are getting a mixed reception, with some environmental law attorneys saying the changes would do little to safeguard shorelines threatened by mounds of heavy sandbags and tarps.

The state Department of Land and Natural Resources’ Office of Conservation and Coastal Lands said in December 2020 that it would revise its rules relating to emergency permits after an investigation by the Honolulu Star-Advertiser and ProPublica found that DLNR had quietly approved more than 60 temporary sandbag structures to protect private property. The approvals were typically for three years, but OCCL didn’t enforce the deadlines or issued repeated extensions, allowing sandbags and heavy tarps to mar public beaches for years and sometimes decades. The results can be seen most conspicuously along stretches of West Maui, where massive stacks of sandbags protect luxury resorts, and Oahu’s North Shore, where burritos — long, sand-filled tubes — and thick tarps protect oceanfront homes.

In addition to blocking the public shoreline, coastal geologists have warned that the sandbag structures can be just as damaging as seawalls, causing beaches to narrow and disappear.

The proposed rule changes are part of a much larger package of amendments to state administrative rules governing the conservation district that OCCL is scheduled to pre­sent to the Land Board today. OCCL is seeking board approval to hold statewide public hearings on the proposed amendments, which can be revised based on community feedback.

OCCL, in its written submittal to the Land Board, says it’s seeking to severely limit the issuance of emergency permits in cases where private property is being threatened by shoreline erosion. The emergency permits are typically intended for emergencies such as floods, landslides and tsunamis.

“The current system has not been effective in addressing the long-term and ongoing crisis caused by rising seas and shoreline erosion,” OCCL wrote.

Under OCCL’s rule changes, the emergency permits could be issued for only one year. If the property continues to be imminently threatened by the ocean, the permit could be renewed, but the situation would be reclassified as an “unmanaged hazardous condition” and subject to different rules.

For those properties, owners would have to seek permission from the Land Board for the temporary shoreline hardening structures, whereas emergency permits only need approval from the director of DLNR. Applicants also would be required to develop a long-term solution for their threatened property, such as relocating or abandoning it, or where possible, participating in a beach nourishment project that would protect it. The Land Board also may require a surety bond or other financial assurance to help ensure that the temporary shoreline hardening is at some point removed.

“The intent is to identify chronic coastal erosion itself as an ‘unmanaged hazardous condition’ rather than an ‘emergency’ along the lines of a rockfall, tsunami, flood, or hurricane,” said OCCL administrator Michael Cain by email. “As such, proposals for temporary shoreline structures will no longer be accepted under ‘emergency permits,’ but rather will be referred to the Board pursuant to the proposed (rule amendments).”

Lauren Blickley, Hawaii regional manager for the Surf­rider Foundation, said the proposed changes will close loopholes in the emergency permitting system that have been “misused by private property owners at the expense of our beaches.”

The permits “were not intended to shore up vulnerable properties facing chronic issues such as coastal erosion,” she said by email.

But environmental attorneys who reviewed the rules raised concerns.

“They kind of prolong the status quo,” said Colin Lee, an attorney and climate change analyst with the University of Hawaii at Manoa’s School of Ocean and Earth Science and Technology.

The proposed rules say that the Land Board “may” require a property owner to obtain a surety bond or other financial instrument to ensure removal, when they should say “shall,” said Lee.

Lee said he also was concerned that the proposed rules do not include a time limit for how long property owners can maintain shoreline hardening structures, such as burritos and sandbags, in cases where their properties are threatened by chronic erosion and fall into the category of “unmanaged hazardous conditions.”

Even if the property owner goes through all of the checks of coming up with a plan for removing their home, he said it’s unlikely that the property owner actually will follow through if there is no enforcement.

“What are the odds that they are going to be like, ‘You know what? I am going to rip my house out,’ or, ‘I am going to leave my house.’ … They’re not,” said Lee.

Lee said property owners likely will continue to keep the burritos and sandbags in place after their approval has expired and illegally harden the shoreline in front of their property through other means unless there are immediate penalties. Flagrant examples can be seen most recently along Oahu’s North Shore.

Lee said that the real problem is the lack of enforcement on the part of the state.

“It is going to preserve what we have now, which pushes it back to the agencies needing to enforce it, which pushes it back to the attorney generals not wanting to do the work to enforce it,” said Lee.

Elena Bryant, an attorney with Honolulu’s Earthjustice, an environmental law firm, raised similar concerns.

“OCCL seems to have good intentions, but does this just pave the way for ‘temporary’ walls that never go away?” she said by email. “The number one problem has always been, and will continue to be, a lack of enforcement.”

Na Papa‘i Wawae ‘Ula‘ula, a community group based on Maui, also raised concerns about the proposed rules in written testimony submitted to the Land Board. It wants to make sure that under the rules burritos and sandbags are considered “shoreline hardening,” along with seawalls.

It’s asking that the Land Board defer approval of the rules until state officials consult with community groups to come up with a better proposal. Their concerns extend beyond the emergency permits to other proposed changes to the conservation district rules.

Update: The state Board of Land and Natural Resources meeting scheduled for today is now tentatively rescheduled for Oct. 27.