The reality of coastal erosion from sea level rise is
intensifying statewide, revealing more situations of structures precariously perched at ocean’s edge, undermined by waves and dangerously close to being swept out to sea.
These new realities should, and must, spur enlightened policies to confront the coastal crisis. But rather than stepping up, Maui County and its Planning Commission actually passed new special management area (SMA) rules that abdicate oversight responsibility over developers’ shoreline projects, by creating more carve-out situations for developers to self-regulate.
So it is crucial to laud Maui Circuit Judge Kirstin Hamman’s ruling last week, siding with plaintiff Maui Tomorrow Foundation, that invalidated Maui’s new rules regarding SMA assessments and permitting procedures.
“The Court agrees with Plaintiff that the new SMA rules impermissibly delegate Commission obligations to SMA users,” Hamman wrote.
Maui’s new rules are now barred, reverting to the old ones with fewer developer exemptions while the commission tries anew to improve policies. Maui County is reviewing the ruling and considering whether to appeal.
It really should not — if officials are serious about maintaining integrity over a key process that safeguards the natural environment.
That system for development permitting in a special management area stems from the 1972 federal Coastal Zone Management Act (CZMA), in tandem with the 1977 Hawaii Coastal Zone Management Act of 1977. The state law authorizes each county to establish SMAs that have special controls on developments near shorelines to preserve, protect and even restore cultural and natural resources.
Under the CZMA, proposed development within an SMA that has a construction value exceeding $500,000, or that may have a substantial adverse environmental or ecological effect, must apply for an “SMA major” permit.
But Maui’s revamped SMA rules emerged with 15 new “categorical exemptions” from any requirements for a SMA permit. They were adopted by the Maui Planning Commission last November after two years of public input and signed in July by the mayor.
Maui created so many SMA exemptions for developers and future projects that, instead of holding SMA applicants’ to a high standard to divulge and mitigate environmental effects, the default position was to simply rely on project developers to self-report such impacts. The exemptions’ norm would be to trust in developers themselves to declare and adhere to “best management practices.”
Maui County says the new rules would “streamline” the SMA major permitting process — which admittedly, can take too many months to clear, especially for larger development proposals.
But alarmed, environmental group Maui Tomorrow sued, saying the many new SMA loopholes render the coastal regulations ineffective. That’s spot on.
Tellingly, Hamman took judicial note that Maui’s weakened SMA rules were in contrast to all other counties. Honolulu, Kauai and Hawaii island all follow the state law’s definition of “development” and include a three-step process for determining whether a proposed use is a development, whether it is exempt, and if exempt, its impacts on the SMA.
“None of the other counties,” the judge said, “has interpreted the CZMA as giving them the authority to establish categorical exemptions in the way [Maui] Defendants have done in the new SMA rules.”
So ironically, Maui County overstepped its SMA authority, as granted by the state, to actually cede some oversight authority over developers.
Maui’s SMA rules speak to the larger challenges of dealing with coastal erosion — affecting not only structures currently vulnerable to falling into the sea, but development activity in SMA zones statewide, which include hotels and many other shoreline projects. Allowing developers to decide unilaterally if SMA rules apply to their projects, without county oversight, poses a significant threat to effective coastal management, as rightly noted by Maui Tomorrow attorney Lance Collins.
Officials may be justifiably concerned about the time and resources devoted to SMA assessments — but shortcutting and shortchanging coastal safeguards cannot be the way to proceed. Short of prevailing on the state Legislature to change the CZMA law to give counties more authority, the Maui Planning Commission must go back to the drawing board. It should heed coastal zone directives and draw up better rules with fewer loopholes — and keep a careful, cumulative eye on development projects that will indeed have impact on SMA coastlines.
