For weeks, workers with the help of an excavator have stacked large sandbags along a public beach in Kapaa to protect a Balinese-style vacation rental from being ravaged by the ocean.

The layers of hard sandbags that form a sloping wall extend 12 feet onto the beach and encompass 960 square feet, roughly the size of a four-car garage, according to state documents. The buffer is designed to work like a seawall, preventing waves from clawing away at the custom-designed house, which boasts breathtaking views of the Pacific Ocean and rents for more than $750 a night.

The house has been at imminent risk of being damaged by the ocean since at least 2017, the year state officials approved emergency sandbags for the home with the condition that the owner come up with a long-term plan for the property. That could entail applying for a permanent seawall, which is largely prohibited in Hawaii, tearing down the home or, if possible, relocating it farther back on the lot.

The owner found a better option and sold the property at 950 Niulani Road for $2 million in 2018 to Donald and Cheryl Dale.

Donald Dale told the Honolulu Star-­Advertiser that he didn’t know when he purchased the property that it was at risk of eroding into the ocean. But this month he finished installing the emergency sandbags that were originally authorized nearly five years ago.

The wall of sandbags surprised beach advocates. The state Department of Land and Natural Resources said over a year ago that it was cracking down on the approvals and coming out with new rules that would prohibit homeowners from installing the protections for homes threatened by chronic erosion.

“Generally, considering the state’s no-­tolerance policy for seawalls, it makes no sense for officials to grant permit exemptions for emergency sandbags,” said Rayne Regush, executive committee co-chairwoman of the Sierra Club Kauai Group. “Sandbags are hardening structures like seawalls, and there is ample evidence they can cause beach loss and increase erosion to adjacent areas.”

The emergency sandbag project is among dozens that have been approved by the Department of Land and Natural Resources over the past two decades. Property owners are legally allowed to keep the emergency protections in place only temporarily, but state officials have allowed walls of sandbags to remain in front of some properties for years, and even decades, after issuing repeated approvals or losing track of them, an investigation in December 2020 by the Star-Advertiser and ProPublica found.

The approvals have left Hawaii’s picturesque coastlines littered with sandbags and heavy black tarps that get torn and whipped around by the waves. In some cases the barriers completely block public shorelines.

Over the past year, DLNR has tried to rein in the emergency protections, but with limited success as it battles defiant homeowners who refuse to remove the structures, which can cost tens of thousands of dollars, after they expire.

DLNR’s Office of Conservation and Coastal Lands said in a written statement that it spent the latter half of 2021 working to identify expired structures. On Oahu, 46 landowners have been notified of “potential violations,” according to OCCL. The department also has initiated enforcement actions against four property owners, but said the owners had requested contested cases, an administrative appeals process that often leads to court battles.

“These legal challenges put a considerable strain on limited staff resources, and slow down the ability to respond to violations quickly,” according to a statement from OCCL. “It is a very serious, current state challenge.”

New rules

State lawmakers vowed to tackle the problem themselves last year, introducing bills in January 2021 that would impose strict three-year deadlines for removing the structures and boosting fines to $25,000 for every day that an illegal structure remains along the public shoreline. The current maximum fine is $15,000 a day, but that amount is rarely, if ever, imposed.

The bills aimed to ensure that the temporary fixes to an emergency situation didn’t become long-term solutions that cause permanent damage to the state’s beaches.

Coastal geologists warn that hardening a shoreline, either by seawalls or walls of sandbags, can destroy beaches that are migrating inland. Seawalls already have contributed to the loss of one-quarter of the beaches on Oahu, Maui and Kauai. As waves slam up against an armored shoreline, they pull sand off the beach and prevent it from being replenished.

But those bills were soon shelved. Legislative leaders said that instead they wanted to give DLNR time to address concerns about the emergency approvals on its own. DLNR has said for more than a year that it has been revising the department’s administrative rules relating to emergency permits.

Rep. David Tarnas (D, Kaupulehu-Waimea- Halaula), who chairs the House Water and Land Committee, told the Star-Advertiser after the bills were killed in March that if DLNR didn’t come out with the proposed rules by the end of 2021, he would again introduce the legislation. “There is a lot of public pressure coming from members of the public, from members of the Legislature, that this really can’t continue,” Tarnas said at the time.

But those rules still aren’t out, and it’s not clear what they will entail. In June, DLNR told the Star-­Advertiser that it expected the proposed rules to be released in the summer of 2021. In October, DLNR said they were still undergoing review but that proposed amendments were intended to prohibit property owners from being granted emergency approvals in cases where their home, hotel or condo was being threatened by long-term erosion.

On Friday, OCCL said it anticipated releasing the proposed rules early this year. The rules must go through a public hearing process, be approved by the seven-member Board of Land and Natural Resources, which oversees the department, and be signed by the governor.

“Personally, I think it is taking way too long for these rules to be promulgated,” said Tarnas. But he said that he has been briefed by OCCL on their contents and feels comfortable that they will adequately address his concerns. He said he was not reviving his bills from 2021.

Tarnas said he expects the rules to make it easier for OCCL to enforce deadlines and the removal of the emergency protections.

“It is really unacceptable to have this wink and a nod, saying, ‘Oh yeah, it is temporary,’ but then not having enforcement to ensure they are removed,” he said.

DLNR did not respond to questions from the Star-Advertiser asking whether any of the emergency sandbags and tarps that have expired, including those that line Oahu’s famed North Shore beaches, have been removed in the past year.

Land Board

DLNR said that other than the Dale property, it hasn’t approved any other emergency permits in more than a year, but it didn’t respond to questions about why this one was greenlighted. Initial approvals, dating back to 2017, had expired, requiring the property owners to submit a new application that was approved by the the department in April 2021.

In past years such emergency approvals have largely flown under the radar as they only required the director of DLNR to sign off on them. The process sidestepped a much more rigorous process for obtaining approvals for shoreline hardening structures on public shorelines, which requires an environmental review, public hearing and approval from the seven ­member Board of Land Natural Resources which oversees the department. Those permits also require the property owner to compensate the state for the use of state land.

However, this approval went to the Land Board in July, where its members unanimously approved it during a public meeting after virtually no discussion. Specifically, the board unanimously voted to declare that the wall of sandbags “will probably have minimal or no significant effect on the environment,” therefore exempting it from an environmental review. The vote bestowed the owners with a three-year permit to use the state conservation land to construct the barrier to protect their private property.

The Land Board also voted to charge the property owners an unspecified amount of rent for use of the state land. However, when the Star-Advertiser asked how much the owners are being charged, DLNR said the rent was still being calculated.

The Land Board exempted the sandbags from environmental review even though the state’s own submittal indicated that similar emergency protections at two neighboring properties, which documents indicate are expired, were likely causing beach erosion.

The only member of the Land Board to respond to the Star-­Advertiser’s questions about the project was Chris Yuen.

Asked why he voted to exempt the project from environmental review, he stressed that it was a temporary permit and that the potential environmental impact of the project wasn’t really the issue that was before the board.

“We are authorizing the temporary occupation of the land. That is actually what is before the board, not the permit to build the structure itself,” he said.

Lance Collins, an attorney who has represented community groups fighting against shoreline hardening on Maui’s west side, called the board’s action to exempt the project from the state’s environmental laws “highly improper.”

The state’s environmental review law is designed to make sure that potential environmental impacts are identified before a project is executed on state land. It makes allowances for minor projects that are unlikely to cause any significant environmental harm.

“Exemptions are for like, we have to repaint the government buildings because it has been 40 years since they have been painted,” said Collins. “Shoreline hardening should have environmental review. To the extent that the Land Board is not requiring it, that is an error.”

Michael Foley, a coastal engineer for Oceanit, which was hired by the owners to design and shepherd the project, said the wall of sandbags “is a temporary mitigation measure, so the impacts are minimal in the short term.”

“It is yet to be seen what the impact to the beach will be, but we will certainly be monitoring that over the coming years as the structure remains in place,” he said.

Donald Dale, the property owner, declined to comment on whether he was concerned that his wall of sandbags would harm the beach.

Asked what his long-term solution might be for his property, he said, “I have no idea.”