Shorelines are “certified” for County setback purposes. Local building and planning departments require that improvements are not placed too close to the coast, so setbacks from the certified shoreline are imposed on improvements.
Certified shorelines do not determine ownership; they serve as reference points in determining where improvements may be placed on a waterfront property.
The intent of shoreline setbacks include:
- Protect coastal structures
- Maintain access to and along the shoreline
- Allow for natural beach/coastal processes
- Maintain open space and view planes to, from and along the shoreline
“Shoreline” means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth or the upper limit of debris left by the wash of the waves. (HRS §205A-1)
To certify a shoreline, typically, a coastal property owner will hire a private surveyor to prepare a survey map and provide photos of the shoreline area of the property. The State land surveyor then reviews the map, photographs and other appropriate documents.
When I was at DLNR, we started the practice of having someone from DLNR’s Office of Conservation and Coastal Lands assist in shoreline site inspections. Through a partnership with DAGS and UH SeaGrant, we had a SeaGrant agent staged in the OCCL office who conducted shoreline inspections.
When the State surveyor is satisfied with the location of the shoreline, after reviewing the public comments, the maps and photos prepared by the private surveyor and site inspection, he will forward the shoreline maps to the Chairperson of DLNR, for final review and approval.
A notice is posted through OEQC (Environmental Notice) telling the public of the proposed shoreline certification – members of the public have 15-days to appeal the certification.
As Chairperson of the Land Board, I signed the map and certified the shoreline of the coastal property. The certification is valid for only 12-months. (Shorelines can change over time, due to natural coastal processes, so certifications are effective for a limited time.)
Remember, the State does not rely on the “certification” line as the property’s “boundary” line.
When property boundaries and ownership are at issue, the State of Hawai’i does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property’s seaward boundary.
The State has the responsibility to protect and preserve the State’s (the public’s) interest in its property. It vigorously defends ownership and these rights on behalf of the people of the State of Hawai’i.
When shorefront property owners bring quiet title actions (lawsuits seeking the court’s determination of ownership,) the State enters the action to preserve all of its rights and title to its coastal property.
In all such cases, the State Surveyor will conduct an actual on-site survey of the boundary line and not rely on certified shorelines or surveys done by private surveyors.
Ultimately, in title actions, the court decides ownership of the property and the boundary line dividing ownership between private and public lands.
State law says that the right of access to Hawaii’s shorelines includes the right of transit along the shorelines; the public right of transit along the shoreline exists below the private property line.
Some people inadvertently (and, unfortunately, some covertly) do things in the shoreline area without a permit; permits are required for work in this area. A prior owner may have done something, but the liability and responsibility to correct it ends up with the present owner.
Some of our consulting work has included helping people correct (eliminate and/or subsequently permit) encroachments (walls, rocks, docks, vegetation, etc) beyond the shoreline and private property owner’s boundary line.
The photo shows possible issues with seawalls; other issues of concern are the obvious purposeful-placement of rocks within the wash of the waves – vegetation encroaching beyond a property line is a related concern. Each of these requires a permit.
We feel strongly that it is important to correct past errors, not ignore them (even if they were pre-existing when an owner bought the property.) Likewise, people should get a permit for any work near the shoreline area.
We are willing to work people through the process of getting a permit to do something new or to correct prior mistakes. If you think we can be of help, please give us a call.