A. Legal Authority

• Chapter 205A, Part II, HRS, as amended, Special Management Areas
• Special Management Area Rules and Regulations of the County of Kauai, City and County of Honolulu, County of Maui and County of Hawaiʻi.

Information:

• https://planning.hawaii.gov/czm/special-management-area-permits/
• https://www.capitol.hawaii.gov/hrscurrent/vol04_ch0201-0257/hrs0205a/hrs_0205a-.htm

B. Purpose

Pursuant to the state’s Coastal Zone Management Program, Hawaiʻi’s four counties are required to designate Special Management Area (SMA) boundaries and through the establishment of a permitting process, provide special controls on development within these areas. This important process is intended to avoid the permanent loss of valuable resources and the foreclosure of planning and management options. Further, the process is intended to ensure adequate access, by dedication or other means, to public owned or used beaches, recreation areas, and natural reserves.

The SMA ranges inland from the “shoreline” for a considerable distance (300 ft. or greater) and is required to include only shoreline or coastal water related land. Shoreline is defined as the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edges of vegetation growth or the upper limit of debris left by the wash of the waves. The exact boundaries of the SMA are designated on maps on file with the administering department of the respective county.

C. Applicability to Aquaculture

No development may proceed in the SMA unless an applicant obtains a Special Management Area Use Permit (SMAP) from the granting authority of the respective county. §205A-2, HRS, defines “development” broadly to include:

• Placement or erection of any solid material or any gaseous waste, liquid, solid, or thermal waste;
• Grading, removing, dredging, mining, or extraction of any materials;
• Change in density or intensity of the use of land, including the division or subdivision of land;
• Change in the intensity of use of water, ecology related thereto, or of access thereto; and
• Construction, reconstruction, demolition, or alteration of any size of any structure.

There are, however, a number of exemptions that may cover or partially cover aspects of aquaculture development. These include:

• Construction of a single-family residence that is not part of a larger development;
• Routine maintenance dredging of existing streams, channels and drainage ways; and
• Use of land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes subject to review.

§205A-22, HRS, as amended, specifically exempts aquaculture and mariculture from the definition of development, as do the SMA regulations of the counties. However, the exemption is qualified in the regulations, such that if the activity is, or may become, part of a larger project, the cumulative impact of which may have a significant environmental or ecological effect on the SMA, the activity will be defined as “development.” Construction of facilities ancillary to the aquaculture operation, such as storage facilities, maintenance buildings, research offices, and restaurants, may also not be considered exempt. It is, therefore advisable to check with the county administering agency to determine the practical scope and effect of the exemption on any particular project.

The SMA guidelines in the respective county regulations provide that an SMAP will only be granted if the applicant demonstrates that the development:

• Will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests;
• Is consistent with the objectives, policies and special management area guidelines contained in Chapter 205A, HRS, as amended; and
• Is consistent with the general plan, development plans, zoning and other applicable ordinances of the respective county.

D. Administering Agency

The SMAP is administered by the respective county planning department:

Kauai

Planning Department
County of Kauai
4444 Rice Street, Suite 473
Lihue, Kauai, Hawaiʻi 96766
Phone: 808-241-4050
Web site: http://www.kauai.gov/planning

Maui

Department of Planning
Current Planning Division
County of Maui
250 South Main Street
Wailuku, Hawaiʻi 96793
Phone: 808-270-7735
Web site: http://www.co.maui.hi.us/index.aspx?NID=12

Oahu

Department of Planning and Permitting
Land Use Permits Division
City and County of Honolulu
650 South King Street
Honolulu, Hawaiʻi 96813
Phone: 808-768-8014
Web site: http://www.honoluludpp.org/permitinfo/
https://www.honolulu.gov/dpp/permitting/coastal-area-permits.html

Hawaiʻi

Planning Department
County of Hawaiʻi
Aupuni Center
101 Pauahi Street, Suite 3
Hilo, Hawaiʻi 96720
Phone:808-961-8288
Web site: http://www.co.hawaii.hi.us/directory/dir_plan.htm http://www.co.hawaii.hi.us/forms/planforms.html

The approving authority for the SMAP depends upon the size and scope of the project. Proposed projects which are less than $125,000 in value, and do not have the potential to cause substantial adverse environmental or ecological impacts, can be processed through an SMA Minor Permit that can be issued administratively by the Planning Department. For projects that exceed $125,000 in value or which may have a substantial adverse environmental or ecological impact, the county Planning Commission (on Oahu the City Council) has the authority to grant the SMAP.

E. Information Requirements

In general, with all counties a completed Special Management Area Use Permit Application Packet is required to be submitted by the applicant, the following information:

• Evidence of ownership;
• Compliance with Chapter 343, HRS and Chapter 200 HAR;
• Map of the proposed area;
• Written description of the proposed action;
• Environmental assessment report identifying the anticipated impacts of the proposed action on the Special Management Area;
• A certified shoreline survey prepared by a Registered Land Surveyor confirmed by the Chair of the BLNR;
• List of owners and lessees of real property within a 500 foot radius of the subject site;
• A preliminary drainage plan;
• A plot plan of the land; and
• A preliminary development and landscaping plan.

F. Public Participation

A public hearing is required in conjunction with the all SMAP applications. If a Shoreline Setback Variance is also required in connection with the development proposal, a joint public hearing will be held.

G. Process Time

The processing time for a Special Management Area Minor Permit (i.e., a project which is not in excess of $125,000 and will not have significant environmental impact) can be as little as 30 days in all the counties. The processing time for a full SMAP (greater than $125,000 in value) varies considerably between counties and the complexity of the project. From the date the completed application is accepted by the administering department, the full processing time for the application can be as little as 120 days. However, if issues arise as the application moves through the process, approval could take a year or longer.

A number of formal sequencing steps are involved with the processing of an SMAP application. Although the steps are similar between counties, specific time periods for each step vary by county. An applicant contemplating a development activity in the SMA should consult with the administering department of the respective county as early as possible in the planning process to understand the required processing steps and identify information requirements.

H. Sequence of Filing

Issuance of an SMAP is required by statute to precede any other permit approval. If a Shoreline Setback Variance is required in conjunction with a SMAP, they will be processed concurrently.

I. Cost

The filing fee for a Minor SMAP for aquaculture is $300 in the City and County of Honolulu; and for a Major SMAP, the cost depends on the project size, with a maximum fee of $10,000. For the County of Hawaiʻi the fee is $250 for a Minor permit and $500 for a Major permit. In the County of Kauai, the cost is $150 maximum. For the County of Maui, the fee is $550 minimum, with the actual fees dependent on project costs.

The cost of preparing supporting information, such as a Certified Shoreline Survey, project plans, project valuation, an EA, and if required an EIS, can be significant, depending on the size of the property, the complexity of the proposed development and surrounding environmental conditions.