A controversial bill that would make it easier for homeowners to build retaining walls along their shoreline properties passed out of the Honolulu City Council’s Zoning and Planning Committee on Thursday.

Bill 17 was introduced by Council Chair Ernie Martin, but drafted by Howard Green, an attorney and Kaneohe Bay property owner fighting the city over an illegal wall he erected along his Kaneohe Bay shorefront property to keep it from sinking.

But the measure has sparked opposition from environmentalists and city planning officials who say the bill is likely illegal and usurps 1970s legislation that protects the shoreline and public beach access.

“The bill would fundamentally change this policy from one of public interest to accommodation of property owners,” Art Challacombe, deputy director for the city’s Department of Planning and Permitting, told council members.

He said the bill guts DPP’s authority to remove certain shoreline structures that harm the ebb and flow of the coastline. It would lead to harmful sedimentation or impinge on the public’s right to access the beach at a time when global warming and sea level rise are eating away at Oahu’s coastlines, he said.

The bill “omits new scientific data that is emerging on sea level rise and climate change,” said Challacombe. “If we believe sea level rise is real and not a myth then DPP will need to know (the structures) will not have an impact on future beach processes.”

Specifically, the bill allows homeowners who want to erect retaining walls in setback areas to seek a minor shoreline structure permit as opposed to a shoreline setback variance.

The variance process is much more cumbersome and requires property owners to conduct an environmental assessment on the wall’s potential impacts and allows for a public comment period.

In contrast, DPP doesn’t have discretion over whether it can issue a minor shoreline structure permit so long as a property meets specific conditions, said Robert Harris, an attorney and executive director of the Hawaii Sierra Club.

“It’s changing the entire mentality of how you deal with these properties,” he said.

Harris said the bill likely violates the Hawaii Coastal Zone Management Act of 1977, which gives the counties authority to protect their coastlines.

But Green, who showed up to testify on the bill that he helped write, said that the measure streamlines a cumbersome and expensive process that makes it difficult for property owners to build structures that don’t harm the environment.

He said he spent $10,000 on building his un-permitted walls and has spent $75,000 in legal and administrative fees in his fight to keep them.

Challacombe told Civil Beat that if the bill passes, Green’s wall will become legal.

Green said that some retaining walls, like his, actually prevent sediment from flowing into the bay and are good for the environment. The measure doesn’t allow for destructive seawalls, he said.

“Seawalls are not going to be permitted under this,” said Green. “Only walls that are back from the ocean a bit, so they don’t affect the ocean at all.”

But not everyone agrees that the retaining walls won’t affect the ocean. The bill controversy is the latest in a decades-old debate about what to do with homes erected too close to the shoreline that are causing beaches to erode and public access to shorelines to be cut off.

Scientists and government officials have long known that allowing property owners to harden their shorelines by building walls can cause the beach to erode. The problem stretches back to the early 20th century when public officials realized that homes and hotels built along Waikiki were causing the beach to wash away. Still, seawalls proliferated throughout the century and local scientists now estimate that they have caused the loss of up to 40 percent of Oahu’s beaches.

University of Hawaii geologist Chip Fletcher is skeptical that the measure won’t lead to coastal erosion, as supporters contend.

“If I am allowed to build a retaining wall at the shoreline area within the setback, then as sea level rises or the shoreline erodes, than that retaining wall is eventually going to be hit by waves,” he said.

And that means that the public could lose access to the coastline. The official shoreline, that serves as the dividing line between state jurisdiction and private property rests at the ocean’s high water mark.

But walls alter the high water mark, and prevent water from being pushed further onshore as sea level rises or ocean currents change.

“They would be getting free land that would be turned into state land or submerged land,” said Fletcher.

There’s debate about whether the language of Bill 17 applies only to properties built along rocky or dirt coastlines, and not sandy beaches. Green said that sandy beaches were exempt, while Challacombe disagrees.

But building structures along bays like Kaneohe where there is not a beach can also have a negative impact on the marine environment, noted Challacombe, who grew up in the area.

“I remember as a child after statehood, the unregulated grading that was done to the bay, causing immense sedimentation, killing almost all of the corals, essentially destroying the clam picking that used to go on,” he said. “And it still has not come back after 40 some odd years.”

Bill 17 now moves to the full City Council for consideration.

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