As rates of erosion increase along Hawaii’s coastlines, policymakers are grappling with what to do with the hundreds of seawalls that line coasts and pose a potentially daunting liability risk to the state.
Many seawalls that were once constructed on private, beachfront property are now legally on state land as the high wash of the waves moves farther inland. Some of the seawalls are now makeshift public walkways; others are crumbling, protruding with rebar steel and falling into the ocean.
Policymakers say that the seawalls pose an escalating liability risk to the state, which could face lawsuits if beachgoers are hurt or killed in the surf by loose debris, or if the state has to maintain seawalls that protect private property or provide the public with ocean access in areas where the beach has eroded.
The dilemma is in sharp focus this week as waves of up to 50 feet have pounded Oahu’s North Shore and clawed at beachfront homes, tearing away one seawall that was protecting a home along Kamehameha Highway.
The waves are some of the biggest the state has contended with in 50 years, Sam Lemmo, head of the state Department of Land and Natural Resources’ Office of Conservation and Coastal Lands, said at a news conference Tuesday.
He didn’t have an estimate regarding how many beachfront homes might be threatened, but he said the surf further underscores Hawaii’s problem of allowing structures to be built too close to the shoreline.
In an attempt to address the liability issue, the Governor’s Office and DLNR are for the fourth year in a row pushing to shift some of the risk to private property owners, but some worry that it could come at the expense of the environment and preservation of Hawaii’s prized public beaches.
Senate Bill 1125 and House Bill 956, both part of Gov. David Ige’s legislative package, would make it easier and faster for Hawaii’s Board of Land and Natural Resources to give homeowners easements — or rights to state property — so they can maintain seawalls that were originally constructed legally and, at the time, on their private property.
In exchange for easements, property owners would be required by DLNR to acquire insurance and indemnity protection.
“By resolving the liability and indemnity issues, taxpayers will have greater protection from potential legal and financial liability against the state with regard to these structures,” according to departmental testimony on the bills.
Landowners often find out that their seawalls or other portions of their property fall on state land when they seek building permits. The permits trigger state requirements to recertify the shoreline to determine where the public beach ends and private property begins.
The public beach is measured by the high wash of the waves during typical seasonal wave patterns.
If seawalls, which are notorious for eroding sandy beaches, rest on public land, the state has the discretion to require the property owner to tear down the wall or require the owner to seek an easement.
Specifically, the bills would allow BLNR to grant easements to property owners at below market value, in contrast to current law.
DLNR officials say that the policy change would circumvent a cumbersome process of assessing property values and avoid drawn-out mediation and arbitration proceedings if a property owner fights the costs.
“Landowners in this situation are generally resistant to paying fair market value for an easement over land that was once private,” according to written responses to questions provided by DLNR spokesman Dan Dennison.
Dennison said that DLNR didn’t have a sense of the overall liability risk to the state or an estimate on how many easements BLNR might end up processing in the coming years.
“However, we can expect the number to rise as 70 percent of beaches on Kauai, Oahu and Maui are undergoing chronic or long-term erosion,” he wrote.
But while the measures could help safeguard the state from costly litigation, some worry that giving beachfront property owners a legal means to cheaply maintain seawalls on state land will contribute to the further loss of Hawaii beaches.
DLNR counters in testimony that beaches will still be protected because the Land Board will retain discretion over approving easements.
Oahu alone has lost about one-fourth of its beaches, and of those remaining about 70 percent are eroding, according to local scientists. The situation is expected to be exacerbated by global warming, which is causing an accelerated rise in sea level. Portions of the shoreline could retreat inland by as much as 20 feet by midcentury, according to a study released last year by scientists at the University of Hawaii at Manoa’s School of Ocean and Earth Science and Technology and DLNR.
Scientists say that Hawaii’s legacy of allowing property owners to build too close to the shoreline and later erect seawalls to protect their properties has led to the loss of many of Hawaii’s beaches.
The proposed bills could further entrench that policy, according to testimony from the state Office of Planning.
“This bill opens the door to private property owners to maintain their existing shoreline structure, and more likely request for repairs, and even emergency repairs of their existing shoreline structures,” wrote Leo Asuncion, director of the Office of Planning, in testimony on the measures. “In addition, this bill sets up a policy that those shoreline protection structures (e.g., seawalls) currently located within the private land, will be granted shoreline encroachment easements in the future from the state.”
Jesse Souki, who served as both director of the Office of Planning and deputy director of DLNR under former Gov. Neil Abercrombie, said that the bills could encourage landowners to build seawalls as close as they can to the shoreline.
“By creating this mechanism where DLNR can basically fix that problem in the future, it encourages landowners to make a decision that might not make sense in the future,” said Souki.
“If you encourage the building of seawalls as close as possible to the shoreline, then inevitably the beach will be gone,” he continued, while stressing that he wasn’t advocating for or against the bills.
Souki said that the state might also be concerned that private property owners will sue if they are required to tear down legally constructed seawalls that now fall on state land and are protecting their property.
It’s an area of case law that has not yet been settled, he noted, with some attorneys and beach advocates arguing that Hawaii law clearly protects the public’s right to the beach at the expense of private property owners.
Asked whether he had seen an assessment of the state’s potential liability in regard to seawalls, Souki said, “I’ve always been curious about it but never seen anything. I think it is a question that you are best not knowing.”