In a lawsuit, Maui Tomorrow rejects the regulations as essentially toothless, but the county says they will expedite permitting and avoid unnecessary hurdles. A new coastal management regime that took effect in Maui County on Sunday is unlawful, according to Maui Tomorrow Foundation. The Wailuku-based nonprofit filed a lawsuit in state court last week against Maui County and the Maui Planning Commission over “categorical exemptions” written into the Special Management Area rules that it says effectively render the coastal regulations ineffective.
The commission adopted the SMA regulations in November and Mayor Richard Bissen approved them in July. Planning Director Kate Blystone did not respond to a request for comment Monday. The mayor’s communications team declined to comment on the case.
But the Maui County website says the new rules will “streamline the permitting process” in addition to using the best available science on sea level rise to improve coastal resilience. The rules stem from 1972 when Congress passed the Coastal Zone Management Act to balance economic development with protection of sensitive coastline areas by regulating what can and cannot occur inside them. The state holds authority over the CZMA program but delegates administration and enforcement to the counties.
The new Maui County rules take into account sea level rise projections and come nearly two years after the Maui Planning Department published its draft version of the rules. The draft followed extensive, and at times contentious, public outreach. The rules, which aim to strengthen coastal protections for Maui’s shrinking beaches and associated marine life, have wide-ranging implications for property owners.
As Maui contemplates the reconstruction of Lahaina following the Aug. 8, 2023, wildfire, they are top of mind for many residents ranging from developers to fire survivors looking to rebuild destroyed homes in the coastal community. If the lawsuit is successful, it could result in a temporary or permanent injunction, forcing a redo by the county.
The 15 exemptions that Maui Tomorrow alleges are illegal include what it says is a removal of the Planning Commission’s existing oversight, scrutiny and ability to enforce protections in the SMA. “Only those proposing certain exempt uses, activities or operations must file a publicly accessible declaration form with the Planning Department,” according to the suit. Otherwise, the Planning Commission has no record of activities or operations it has previously assessed or determined to be exempt from SMA permit requirements, the complaint says.
Maui Tomorrow issued a statement late Monday saying the categorical exemptions allow the filing of declarations with the Planning Department “to avoid government review.” “In other cases, developers may proceed without notifying the county at all,” the group says. In a press release last year, Maui County’s planning director at the time said the updated rules are more balanced and flexible for property owners while taking into account emerging science.
The categorical exemptions allow people to bypass submitting an SMA permit application if the proposed work has minimal to no environmental impact. For example, if someone wanted to remodel a kitchen or bathroom in a project costing less than $500,000 in any 24-month period, and if it didn’t increase the size of the dwelling, they likely would not need to file for an SMA permit. The new rules also remove the mandatory requirement for a certified shoreline survey and leaves it up to the discretion of the Planning Department.
The Maui Tomorrow lawsuit targets the SMA rules specifically, not the Shoreline ones, although the two go hand in hand. The nonprofit contends in its lawsuit that emergency protection of infrastructure is exempt from SMA permitting requirements. That could mean ongoing armoring of coastal roadways, many of which are threatened by waves, storm surges and erosion and are projected to be underwater by century’s end if not sooner.
Hardening is associated with beach loss and is generally not allowed by the state Department of Land and Natural Resources. The new rules also don’t contain any provisions for court review or public appeal of categorical exemptions nor do they include provisions to implement Maui’s law on artificial light pollution, designed to protect migrating endangered seabirds, according to Maui Tomorrow. The exemptions “unlawfully delegate” to private parties rather than the Planning Commission the assessment of environmental impacts to shoreline areas even if those impacts are cumulative or significant, according to the suit.
“Unregulated activity in the special management area clearly has the potential to impact Maui’s coastal ecosystems. Some reforms to the Special Management Area rules would make sense, but wholesale removal of public scrutiny in our coastal areas is not the solution,” Maui Tomorrow Vice President Lucienne de Naie said in a press release Monday. Special management areas begin where the shoreline ends in certain places.
In Hawaii, the shoreline is defined as the upper reach of the wash of waves during high tide, marked by the edge of vegetation or a debris line visible on the beach. An SMA extends mauka of the shoreline to a boundary determined by the county through its planning commission. In Maui County, the bodies authorized to do this are the Maui, Molokai and Lanai planning commissions.
In 2003, Maui County became the first county in the state to take into account erosion rates when establishing its shoreline setback rules, according to a county press release. The rules were based on historical erosion rates and didn’t take into account sea level rise. With the creation of the Hawaii Sea Level Rise Vulnerability and Adaptation Report of 2017 , Maui began using it as a guiding document for planning purposes.
The report said to expect 3.2 feet of sea level rise by 2100. Since then, its updated version says peer-reviewed scientific literature as well as government and multinational reports increasingly point to 3 to 4 feet of sea level rise by 2100 as a mid-range forecast for Hawaii, rather than a high-end scenario.
The new Shoreline rules reflect the new science so instead of relying on historic erosion rates, they adopt an erosion hazard line that is based on modeling from the Hawaii Climate Change Mitigation and Adaptation Commission. The commission used the vulnerability and adaptation report findings to create the models. Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Center for Disaster Philanthropy.
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