HAR §13-5-46. Retroactivity

This chapter shall apply immediately upon taking effect, with the exception that applications that have been accepted for processing prior to this chapter taking effect will be processed according to the rules dated August 12, 2011. [Eff and comp ] 2. Material, except source notes and other notes, to be repealed is bracketed and stricken. New material is underscored. 3. Additions to update source notes and other notes to reflect these amendments and compilation are not underscored. 4. These amendments to and compilation of chapter 13-5, Hawaii Administrative Rules, shall take effect ten days after filing with the Office of the Lieutenant Governor. I certify that the foregoing are copies of the rules drafted in the Ramseyer format pursuant to the requirements of section 91-4.1, Hawaii Revised §13-5-45 5-71 Statutes, which were adopted on by the Board of Land and Natural Resources and filed with the Office of the Lieutenant Governor. ___________________________________ DAWN CHANG, Chairperson Board of Land and Natural Resources APPROVED FOR PUBLIC HEARING ________________________ MIRANDA STEED Deputy Attorney General Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule Exhibit 1 Conservation District Violation Penalties Schedule: October 14, 2022 Guidelines and assessment of damages to public land or natural resources, relating to Act 217 Introduction Hawaii Revised Statutes (HRS) §183C-7 was amended on July 7, 2008 to increase the maximum penalty for a Conservation District violation to up to $15,000 per violation, in addition to administrative costs, costs associated with land or habitat restoration, and damages to public land or natural resources, or any combination thereof. These guidelines are consistent with HAR §13-1, Subchapter 7, Civil Resource Violation System (CRVS). Conservation District Violation Penalties Schedule Staff will treat each case individually when assigning conservation district penalties using the following framework, and additional considerations and factors for upward or downward adjustments. The staff will use these guidelines to issue violation notices and to make recommendations to the Board of Land and Natural Resources (Board), Chairperson of the Board of Land and Natural Resources (Chairperson), or Presiding Officer, who may ultimately adjudicate the Conservation District penalties. The Chairperson, Board, or Presiding Officer may also assess administrative costs, damages to public land or natural resources, and costs associated with land or habitat restoration. The penalty range for these actions will be initially determined based on the type of permit that would have been required under Chapter 13-5. For violations in which an unauthorized use is not identified in Chapter 13-5, staff may try to associate the action with the most similar identified land use in Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule the chapter or according to the “harm to the resource” caused by the violation. Once the baseline for the penalty range has been established the penalty may be adjusted appropriately upward or downward according to the “harm to resource” caused or potentially caused by the violator’s action and additional considerations and factors. The initial violation penalty range associated with each required permit will be assessed in accordance with the following harm or potential harm to resources. Table 1. Penalty Guideline Framework Harm or potential for harm to resource Closest identified land use permit Penalty range Major Board $10,000-$15,000 Moderate Departmental $2,000-$10,000 Minor Site Plan $1,000-$2,000 Very Minor Site Plan Up to $1,000 Major harm to the resource / Board Permit Violations may incur a penalty in the range of $10,000 to $15,000 as a Board permit would have been required to minimize the possibility of causing “major harm to the resource.” Examples of “major harm to the resource” may include actions that cause substantial adverse impact to existing natural resources within the surrounding area, community, ecosystem or region, or damage to the existing physical and environmental aspects of the land, such as natural beauty and open space characteristics. Such actions may include, but are not limited to, unauthorized single-family residences or unauthorized structures, grading or alteration of topographic features, aquaculture, major marine construction or dredging, unauthorized shoreline structures, major projects of any kind, mining and extraction, etc. Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule Moderate harm to the resource / Departmental Permit Violations may incur a penalty in the range of $2,000 to $10,000, as a Departmental permit would have been required, due to the possibility of causing “moderate harm to the resource.” Examples of “moderate harm to the resource” may be adverse impacts that degrade water resources, degrade native ecosystems and habitats, and/or alter the structure or function of a terrestrial, littoral or marine ecosystem. Such actions may include, but are not limited to, unauthorized landscaping causing ground disturbance, unauthorized alteration, renovation or demolition of existing structures or facilities, such as buildings and shoreline structures, maintenance dredging, agriculture, and animal husbandry, etc. Minor harm to the resource / Site Plan Approval Violations may incur penalties as a site plan approval would have been required to assure that “minor harm to the resource” are minimized. “Minor harm to the resource” may incur a penalty of $1,000 to $2,000 and could be actions causing limited to short-term direct impacts including, but not limited to, small-scaled construction, construction of accessory structures, installation of temporary or minor shoreline activities or similar uses. Minor harm to the resource / Site Plan Approval In instances in which a Site Plan Approval should have been sought but are considered to have only caused “very minor harm to resource” a penalty of up to $1,000 may be incurred. These “very minor harm to the resource” could be actions in which the impact on the water resource or terrestrial, littoral or marine ecosystem was temporary or insignificant, and was not of a substantial nature either individually or cumulatively. Tree removal Violation penalties for the removal of any federal or state listed threatened, endangered, or commercially Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule valuable tree may incur a fine of up to $15,000 per tree. Removal of any native tree may incur a fine of up to $1,000 per tree. The removal of any invasive tree shall be considered as removal/clearing of vegetation. The Board, Department, or Presiding Officer also has the option of considering the removal of more than one tree as a single violation. However, the removal of any federally or state listed threatened or endangered tree shall be considered on per tree basis, with a maximum penalty of up to $15,000 per tree. Additional considerations and factors After Staff applies the Conservation District violation graduated penalty framework to identify the violation penalty range staff may incorporate several considerations into the final assessed conservation district penalty including but not limited to, those factors identified in HAR §13-1-70 Administrative Sanctions Schedule; Factors to be Considered. Continuing violations and permit non-compliance Each day during which a party continues to work or otherwise continues to violate conservation district laws, and after the Department has informed the violator of the offense by verbal or written notification, the party may be penalized up to $15,000 per day by the Department for each separate offense. Violation of existing approved Conservation District Use Permit (CDUP) conditions will be assessed on a case-by-case basis. In kind penalties Once the penalty amount has been established through the framework above, the Department may determine that the full payment or some portion of the penalty may be paid as an in-kind penalty project. Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule In-kind penalties will only be considered if the responsible party is a government entity, university, or school board, or if the responsible party is a private party proposing an environmental restoration, enhancement, information, or education project. In-kind penalties are limited to the following specific options: a. Material or labor support for environmental enhancement or restoration projects. b. Environmental Information and Environmental Education projects. c. Capital or facility improvements. d. Property. A responsible party may propose to donate land to the department as an in-kind penalty. Assessment of damages Penalties to recoup damages to public lands or natural resources for the purposes of enforcement and remediation may also be assessed. The cost of a full-scale damage assessment by the Department would be an administrative cost, which could be recouped by the Board from the landowner or offender pursuant to §HRS 183C-7. The Board may allow restoration activities and damage penalties to be conducted or applied to a site different from the location of the damaged area where similar physical, biological or cultural functions exist. These assessed damages are independent of other, city, county, state and federal regulatory decisions and adjudications. Thus, the monetary remedies provided in HRS §183C-7 are cumulative and in addition to any other remedies allowed by law. Primary restoration damages The cost of land or habitat restoration or replacement, the cost of site monitoring, and site management may be assessed and charged as primary restoration damages. Restoration efforts will aim to return the damaged ecosystem to a similar ecological Chapter 13-5 Exhibit 1 Exhibit 1, Conservation District Violation Penalties Schedule structure and function that existed prior to the violation. In cases in which the damaged ecosystem was predominately composed of non-native species, restoration efforts must re-vegetate Conservation District land and public lands with non-invasive species, preferably native and endemic species when possible. The use of native and endemic species may thus result in the restoration of ecological structure and function critical for the survival of endemic Hawaiian species. Compensatory damage calculation Compensatory damages to public lands or natural resources may be assessed and charged to the violator to compensate for ecosystem damage and lost initial and interim ecosystem services to the public. All Divisions of the Department may coordinate their resources and efforts along with existing ecosystem valuations and publications to derive the estimated total value of the natural resource damaged until the ecosystem structure, function, and services are estimated to be recovered. Adjudication of damages The adjudication of primary restoration damages and compensatory damages will be adjudicated by the Board due to the complexity of the assessment process and to assure proper checks and balances, including adequate public notice and a public hearing. In addition to the damages and penalty violations assessed, the Department is allowed to recoup all administrative costs associated with the alleged violation pursuant to HRS §183C-7(b). All penalties assessed will be in compliance with HRS §183C-7(c) and will not prohibit any person from exercising native Hawaiian gathering rights or traditional cultural practices. Chapter 13-5 Exhibit 2 Exhibit 2,Subzone Designations Exhibit 2, Subzone Designations: June 28, 2019 (1) "H-1, Makalawena," Hawaii, June 4, 1978 (2) "H-2, Keahole Point," Hawaii, August 23, 1985 (3) "H-3, Mahukona," Hawaii, August 23, 1985 (4) "H-4, Keawanui Bay," Hawaii, June 4, 1978 (5) "H-5, Anaehoomalu," Hawaii, June 4, 1978 (6) "H-6, Kiholo," Hawaii, August 23, 1985 (7) "H-7, Kailua," Hawaii, August 12, 2011 (8) "H-8, Kealakekua," Hawaii, June 4, 1978 (9) "H-9, Honaunau," Hawaii, August 22, 2014 (10) "H-10, Kauluoa Point," Hawaii, June 4, 1978 (11) "H-11, Milolii," Hawaii, August 23, 1985 (12) "H-12, Manuka Bay," Hawaii, June 4, 1978 (13) "H-13, Hawi," Hawaii, June 4, 1978 (14) "H-14, Kawaihae," Hawaii, June 4, 1978 (15) "H-15, Puu Hinai," Hawaii, June 4, 1978 (16) "H-16, Puu Anahulu," Hawaii, June 4, 1978 (17) "H-17, Hualalai," Hawaii, June 4, 1978 (18) "H-18, Puu Lehua," Hawaii, June 4, 1978 (19) "H-19, Kaunene," Hawaii, June 4, 1978 (20) "H-20, Puu Pohakuloa," Hawaii, August 12, 2011 (21) "H-21, Papa," Hawaii, August 12, 2011 (22) "H-22, Pohue Bay," Hawaii, August 23, 1985 (23) "H-23, Puu Hou," Hawaii, June 4, 1978 (24) "H-24, Honokane," Hawaii, June 4, 1978 (25) "H-25, Kamuela," Hawaii, June 4, 1978 (26) "H-26, Nohoaohae," Hawaii, June 4, 1978 (27) "H-27, Keamuku," Hawaii, June 4, 1978 (28) "H-28, Naohueleehua," Hawaii, August 23, 1985 (29) "H-29, Puu O Uo," Hawaii, August 23, 1985 (30) "H-30, Sulphur Cone," Hawaii, August 23, 1985 (31) "H-31, Alika Cone," Hawaii, June 4, 1978 (32) "H-32, Puu o Keokeo," Hawaii, June 4, 1978 (33) "H-33, Kahuku Ranch," Hawaii, June 4, 1978 (34) "H-34, Ka Lae," Hawaii, June 4, 1978 (35) "H-35, Kukuihaele," Hawaii, June 4, 1978 (36) "H-36, Makahalau," Hawaii, June 4, 1978 (37) "H-37, Ahumoa," Hawaii, June 4, 1978 (38) "H-38, Puu Koli," Hawaii, June 4, 1978 (39) "H-39, Kokoolau," Hawaii, June 4, 1978 (40) "H-40, Mauna Loa," Hawaii, June 4, 1978 (41) "H-41, Keaiwa Reservoir," Hawaii, June 4, 1978 Chapter 13-5 Exhibit 2 Exhibit 2,Subzone Designations (42) "H-42, Punaluu," Hawaii, August 12, 2011 (43) "H-43, Naalehu," Hawaii, August 12, 2011 (44) "H-44, Honokaa," Hawaii, June 4, 1978 (45) "H-45, Umikoa," Hawaii, June 4, 1978 (46) "H-46, Mauna Kea," Hawaii, June 4, 1978 (47) "H-47, Puu Oo," Hawaii, June 4, 1978 (48) "H-48, Puu Ulaula," Hawaii, June 4, 1978 (49) "H-49, Kipuka Pakekake," Hawaii, June 4, 1978 (50) "H-50, Wood Valley," Hawaii, June 4, 1978 (51) "H-51, Pahala," Hawaii, June 4, 1978 (52) "H-52, Kukaiau," Hawaii, June 4, 1978 (53) "H-53, Keanakolu," Hawaii, June 4, 1978 (54) "H-54, Puu Akala," Hawaii, June 4, 1978 (55) "H-55, Upper Piihonua," Hawaii, June 4,1978 (56) "H-56, Kulani," Hawaii, June 4, 1978 (57) "H-57, Kilauea Crater," Hawaii, August 23, 1985 (58) "H-58, Kau Desert," Hawaii, June 4, 1978 (59) "H-59, Naliikakani Point," Hawaii, June 4, 1978 (60) "H-60, Papaaloa," Hawaii, October 22, 1993 (61) "H-61, Akaka Falls," Hawaii, November 23, 1987 (62) "H-62, Piihonua," Hawaii, June 4, 1978 (63) "H-63, Puu Makaala," Hawaii, June 4, 1978 (64) "H-64, Volcano," Hawaii, June 4, 1978 (65) "H-65, Makaopuhi Crater," Hawaii, June 4, 1978 (66) "H-66, Papaikou," Hawaii, June 4, 1978 (67) "H-67, Hilo," Hawaii, June 4, 1978 (68) "H-68, Mountain View," Hawaii, June 4, 1978 (69) "H-69, Kalalua," Hawaii, June 4, 1978 (70) "H-70, Kalapana," Hawaii, August 23, 1985 (71) "H-71, Keaau Ranch," Hawaii, June 4, 1978 (72) "H-72, Pahoa North," Hawaii, June 4, 1978 (73) "H-73, Pahoa South," Hawaii, June 4, 1978 (74) "H-74, Kapoho," Hawaii, June 4, 1978 (75) "M-1, Honolua," Maui, June 4, 1978 (76) "M-2, Lahaina," Maui, June 4, 1978 (77) "M-3, Olowalu," Maui, June 4, 1978 (78) "M-4, Kahakuloa," Maui, June 4, 1978 (79) "M-5, Wailuku," Maui, August 12, 2011 (80) "M-6, Maalaea," Maui, June 4, 1978 (81) "M-7, Paia," Maui, June 4, 1978 (82) "M-8, Puu O Kali," Maui, June 4, 1978 (83) "M-9, Makena," Maui, June 4, 1978 (84) "M-10, Haiku," Maui, August 12, 2011 Chapter 13-5 Exhibit 2 Exhibit 2,Subzone Designations (85) "M-11, Kilohana," Maui, August 23, 1985 (86) "M-12, Lualailua," Maui, June 4, 1978 (87) "M-13, Keanae," Maui, June 4, 1978 (88) "M-14, Nahiku," Maui, June 4, 1978 (89) "M-15, Kaupo," Maui, August 12, 2011 (90) "M-16, Hana," Maui, August 23, 1985 (91) "M-17, Kipahulu," Maui, July 25, 1988 (92) "Mo-l, Ilio Point," Molokai, June 4, 1978 (93) "Mo-2, Molokai Airport," August 23, 1985 (94) "Mo-3, Kaunakakai," Molokai, August 23, 1985 (95) "Mo-4, Kamalo," Molokai, June 4, 1978 (96) "Mo-5, Halawa," Molokai, June 4, 1978 (97) "Lanai," June 4, 1978 (98) "Kahoolawe," June 4, 1978 (99) "0-1, Kaena," Oahu, August 12, 2011 (100) "0-2, Waianae," Oahu, December 13, 2002 (101) "0-3, Waimea," Oahu, January 27, 2011 (102) "0-4, Haleiwa," Oahu, August 23, 1985 (103) "0-5, Schofield Barracks," Oahu, June 4, 1978 (104) "0-6, Ewa," Oahu, June 4, 1978 (105) "0-7, Kahuku," Oahu, June 4, 1978 (106) "0-8, Hauula," Oahu, June 4, 1978 (107) "0-9, Waipahu," Oahu, June 4, 1978 (108) "0-10, Puuloa," Oahu, August 23, 1985 (109) "0-11, Kahana," Oahu, March 24, 1994 (110) "0-12, Kaneohe," Oahu, June 28, 2019 (111) "0-13, Honolulu," Oahu, August 12, 2011 (112) "0-14, Mokapu," Oahu, August 23, 1985 (113) "0-15, Koko Head," Oahu, August 12, 2011 (114) "K-l, Makaha Point," Kauai, June 4, 1978 (115) "K-2, Kekaha," Kauai, June 4, 1978 (116) "K-3, Haena," Kauai, August 12, l992 (117) "K-4, Waimea Canyon," Kauai, June 4, 1978 (118) "K-5, Hanapepe," Kauai, June 4, 1978 (119) "K-6, Hanalei," Kauai, June 4, 1978 (120) "K-7, Waialeale," Kauai, June 4, 1978 (121) "K-8, Koloa," Kauai, April 26, 2013 (122) "K-9, Anahola," Kauai, June 9, 2006 (123) "K-10, Kapaa," Kauai, June 9, 2006 (124) "K-ll, Lihue," Kauai, August 23, 1985 Chapter 13-5 Exhibit 3 Exhibit 3,Special Subzones Exhibit 3 Special Subzones: June 28, 2019 (1) Haka site special subzone. Subzone designation for cemetery purposes as delineated on map entitled "O-12, Kaneohe," Oahu; (2) Kapakahi Ridge special subzone. Subzone designation for nursing or convalescent home purposes as delineated on map entitled "O-13, Honolulu," Oahu; (3) Sea Life park special subzone. Subzone designation for recreational, educational, commercial purposes as delineated on map entitled "O-15, Koko Head," Oahu; (4) Milolii-Hoopuloa special subzone. Subzone designation for Milolii-Hoopuloa fishing village purposes including fishing activities, residential, educational, cultural and recreational uses pursuant to Act 86, SLH 1991, as delineated on map entitled "H-ll, Milolii," Hawaii; (5) Hale O Ho'oponopono special subzone. Subzone designation for educational purposes as delineated on map entitled "H-9, Honaunau," Hawaii; (6) Limahuli Valley special subzone. Subzone designation for educational, recreational, and research purposes as delineated on map entitled "K-3, Haena," Kauai. (7) Lawai Kai special subzone. Subzone designation for educational, recreational, and research purposes as delineated on map entitled "K-8, Koloa," Kauai. Chapter 13-5 Exhibit 4 Exhibit 4, Management Plan Requirements Exhibit 4 Management Plan Requirements: October 14, 2022 1 General description of the proposed use (e.g., forestry, fishpond, astronomy, aquaculture, agriculture). 2 Project location (e.g., island map, location map, site plan (drawn to scale)). 3 Natural hazard assessment, including descriptive information of coastal and upland erosion, flooding, slope, tsunami, sea level rise, and seismic and volcanic hazards, where applicable. 4 A description of best management practices used during project construction and implementation (e.g., mitigation measures). 5 A description of the best management practices to be used during the lifetime of the project (e.g., long-term management goals). 6 Project schedule including description of project sequencing from project construction to project completion, including a description and timing of natural resource monitoring, maintenance plans and a description of the reporting or inspection requirements. 7 Any other information or data, as required by the department. Chapter 13-5 Exhibit 5 Exhibit 5, Coastal Hazard Mitigation Statement Exhibit 5 Coastal Hazard Mitigation Disclosure Statement: October 14, 2022 If the proposed land use lies within the Sea Level Rise Exposure Area (SLR-XA) or coastal high hazard area, an applicant will be required to submit a coastal hazard disclosure statement. The discussion of coastal hazards will require consideration of siting and design for projected hazard exposure for a minimum of 3.2 feet of sea level rise, and for public infrastructure projects consideration of a minimum of 6.0 feet of sea level rise, or following succeeding guidance from the Hawaii Climate Change Mitigation and Adaptation Commission and / or County guidance, whichever is greater. The discussion should demonstrate awareness that flooding and erosion can emanate from various sources that include but may not be limited to high tide flooding, high wave over-wash, groundwater rise, rainfall flooding, and drainage failure. Further, the discussion should consider the progressive increase in frequency and severity of high tide flooding events that will affect coastal areas decades prior to the manifestation of chronic or continuous flooding from projected global mean sea level rise. A description of the land use and identification and description of the coastal hazards that have historically impacted the project area, or which may potentially impact the project site in the future, including both episodic hazards (e.g., floods, high waves, tsunami and hurricanes) or chronic hazards (e.g., erosion and sea level rise), and any previous or existing measures installed in response to coastal flooding or erosion (e.g., temporary erosion control structures). A discussion of potential property damage and plans for adaption to avoid or minimize the impact of hazards, minimize impacts to natural and cultural resources, and minimize impacts to public access. Chapter 13-5 Exhibit 5 Exhibit 5, Coastal Hazard Mitigation Statement For each coastal hazard identified, include a discussion of previous impacts and potential impacts over the expected lifespan of the proposed land use as well as proposed design features that would minimize or mitigate property damage and minimize or mitigate impacts to natural and cultural resources. The discussion should minimally include information from the latest Hawaii Sea Level Rise Vulnerability and Adaptation Report, published in accordance with HRS § 225P-3(n), or its successor, including locally relevant maps, maps of flood hazard areas, and historical shoreline erosion studies (where available). Features of the project that minimize or mitigate coastal hazards, may include but are not limited to, consideration of more conservative shoreline setbacks, elevating habitable structures on bedrock-fastened pilings above minimum requirements for special flood hazard areas but outside of erosion hazard areas, dry-flood proofing lower levels of structures, and avoiding installation of unsealed infrastructure below base flood elevation. Adaptation must be considered which may include a conceptual timeline with discrete actions with triggers (e.g., recurring flooding impacts or land loss to erosion) to adapt to sea level rise. Adaptation should consider relocation of development to areas outside the Sea Level Rise Exposure Area or coastal high hazard areas, abandonment, or flood protection (e.g., elevating land or structures, armoring), provided flood protection does not adversely impact adjacent properties and development and does not adversely impact natural and cultural resources, such as beaches and public access. Chapter 13-5 Exhibit 6 Exhibit 6, Single Family Residential Standards Exhibit 6 Single Family Residential Standards: October 14, 2022 Minimum Setback For lots under one acre: Front: Fifteen feet Sides: Fifteen feet Back: Fifteen feet For lots over one acre: Front: Twenty-five feet Sides: Twenty-five feet Back: Twenty-five feet Allowable building area extensions (e.g., eaves and cantilevered decks) are thirty-six inches with a fifteen-foot setback and forty-two inches with a twenty-five-foot setback. Site characteristics and lot shape may be a factor in adjusting minimum setbacks when so determined by the board. Properties Vulnerable to Coastal Hazards Structures shall be of a post-and-beam or post-on-pier construction, rather than slab-on-grade, in the Sea Level Rise Exposure Area or coastal high hazard area. The maximum developable area in the Sea Level Rise Exposure Area or coastal high hazard areas shall not exceed two thousand five hundred square feet. Single-family residences will not be permitted within the Sea Level Rise Exposure Area when there are buildable areas on the same parcel which are outside the Sea Level Rise Exposure Area or coastal high hazard areas. Shoreline Setback The shoreline setback line shall be established based on a setback distance from the certified shoreline of sixty feet plus seventy times the average annual shoreline change rate, based on a historical shoreline change study as defined in this chapter. No shoreline setback shall be established for any lot subject to this chapter unless the application for a shoreline setback line includes a shoreline survey certified by the department not more Chapter 13-5 Exhibit 6 Exhibit 6, Single Family Residential Standards than twelve months prior to submission of the permit application. The shoreline setback line shall be based on the average lot depth (ALD)1 measured from the current shoreline. For lots with an average lot depth of two hundred feet or less, the shoreline setback line shall be established based on the average lot depth of the lot, as provided in Table 1, or based on sixty feet plus seventy times the annual erosion rate. The applicant may choose the lesser of the two methods, but in no case shall the shoreline setback line be calculated to be less than sixty feet. For property located within the Sea Level Rise Exposure Area or coastal high hazard areas, where there exists sufficient lot depth and elevation, the department may require larger setbacks than the minimum setbacks established in this chapter. The department may waive the requirement for a historical shoreline change study based on supportive documentation from the applicant. Such documentation may include, but is not limited to, county or state approved coastal erosion rate data provided through the University of Hawaii, School of Ocean, Earth Science, and Technology, or evidence that the erosion rate is zero. Table 1: Average lot depth If the average lot depth is: 100 to 140 feet 141 to 160 feet 161 to 180 feet 181 to 200 feet Then the minimum setback distance is: 60 feet 70 feet 80 feet 90 feet 1 Average lot depth (ALD) shall be calculated as follows: (1) measure the two sides of the property that are at or near right angles to the shoreline; (2) measure the length of a line connecting the mid-point of the seaward (shoreline) side of the property to the mid-point of the landward side of the property; (3) add these three (right, left, center lines) measurements together for a total; (4) divide the total by three to obtain the ALD. Chapter 13-5 Exhibit 6 Exhibit 6, Single Family Residential Standards Maximum Developable Area (MDA) Means the total floor area in square feet allowed under the approved land use. The floor area computation shall include: all floor areas under roof, including first, second, and third story areas, lanai, decks, pools and associated pool decks, saunas, garage or carport, and other above ground structures such as equipment buildings and sheds. For lots up to fourteen thousand square feet, the maximum developable area is twenty-five percent of total lot area, and not to exceed one thousand five hundred square feet. For lots over fourteen thousand square feet to one acre, the maximum developable area is two thousand five hundred square feet. For lots larger than one acre, the maximum developable area is three thousand five hundred square feet. The maximum developable area shall be reduced by thirty percent on parcels where the general slope is between twenty percent and thirty percent. Single-family residences will not be permitted on parcels where the general slope is greater than thirty percent. Site characteristics and the degree of pre-existing site disturbance may be a further limiting factor in the calculation of maximum developable area when so determined by the board. Maximum Allowable Building Elevation No portion of any building (excluding any allowed chimney, antenna, vents, solar panels or other renewable energy structures, or similar structures) shall protrude above the maximum allowable building elevation. The top of the maximum allowable building elevation shall be measured from the lowest part of the structure’s foundation at natural grade and at the highest point of the structure’s roof. Areas within the flood zone may allow consideration for additional heights above the maximum allowable building elevation to comply with the National Flood Insurance Program requirements or county floodplain management regulations (whichever are more stringent) when so determined by the board. Chapter 13-5 Exhibit 6 Exhibit 6, Single Family Residential Standards Compatibility Provisions A residence will be compatible with the surrounding environs and designed according to the following criteria: 1. The residence is not designed to allow for independent subunits; 2. Landscaping is appropriate to the area, and is used to screen structures from public view planes; 3. The project complies with all State Department of Health regulations; 4. Grading/contouring of property is kept to a minimum with consideration of existing slope, storm water management, and erosion; 5. All structures connected, or best alternative that minimizes disturbed land area; 6. In conformance to applicable building and grading code and shoreline setback provisions; and 7. The residence contains no more than one kitchen2 2 "Kitchen" means a facility within the residential dwelling for food preparation, including fixtures, appliances or other devices to wash, prepare, heat, cook, and refrigerate food and wash cooking utensils and dining implements. Chapter 13-5 Exhibit 7 Exhibit 7, Hoala Loko Ia Program Standards Exhibit 7 Hoala Loko Ia Program Standards: October 14, 2022 Purpose The purpose of the Hoala Loko Ia Program is to streamline the permitting process for the repair, restoration, maintenance, and operation of traditional fishpond systems in Hawaii. Eligibility The program is open to any fishpond system in the Conservation District, whether existing or historic, whose work plan is in compliance with the Final Environmental Assessment and Finding of No Significant Impact published in October 2013 titled “Statewide Programmatic General Permit and Programmatic Agreement for the restoration, repair, maintenance and reconstruction of traditional Hawaiian fishpond systems across Hawaii.” Permit Processing The Office of Conservation and Coastal Lands will assign completed applications to one of two tiers for processing. Tier 1 The first tier encompasses the minor repair, restoration, maintenance and operation of existing fishponds. OCCL will issue the permit to the applicant along with general conditions, monitoring protocols, and best management practices, and provide notice of the permit to cooperating agencies. Activities that will be covered by a Tier 1 permit include: 1. Repair, restoration, maintenance, and operation of fishpond walls and sluice gates, including but not limited to the placement, movement, manipulation and temporary stockpiling of necessary materials; 2. Placement, movement, manipulation and temporary stockpiling of small stones or rubble for interior wall fill (iliili); 3. Silt removal by hand or mechanized equipment from within fishponds to restore original fishpond depth; 4. Vegetation removal by hand and/or mechanized equipment from within fishponds and from fishpond walls; Chapter 13-5 Exhibit 7 Exhibit 7, Hoala Loko Ia Program Standards 5. Periodic post-restoration maintenance activities required to facilitate the long-term use, management and operation of fishponds; 6. Use of hand or mechanized equipment to conduct fishpond restoration activities; 7. Placement of temporary structures within fishponds, which are necessary to conduct restoration; 8. Placement and use of aquaculture pens, nets, or cages within fishponds; and 9. Use of harvesting equipment within fishponds. 10. Clearing of auwai, or traditional waterways, to allow for restoration of fresh water flow into the loko ia, thus restoring functional integrity and ecosystem services; 11. Removal of invasive species from loko ia that diminish oxygen and other ecosystem services to the pond system; 12. Restoration of punawai, wai hu, waipuna, kele, ele, kahawai or other fresh water sources for the purpose of restoring functional integrity to the system and ecosystem services; or 13. Stocking and breeding native species of flora and fauna using traditional methods for the purpose of restoring functional integrity and ecosystem services to the system. 14. Construction of accessory structures Tier 2 The second tier encompasses moderate to major repair of existing fishponds. OCCL will forward the application to appropriate resource agencies and community groups for review. Reviewers will be able to concur with the standard conditions, request additional information from the applicant, seek additional consultation with subject matter area experts, or identify additional and or site- specific conditions, protocols, and best management practices. Once the process is complete OCCL will forward the application to the Chair of the Board of Land and Natural Resources, who will have the final authority to approve, modify, or deny the permit. Activities that will be covered by a Tier 2 permit include: 1. Restoration work that involves a change of more than ten percent of the dimensions of the historic structure; 2. Utilizing rocks from off-site; 3. Dredging with the use of mechanized equipment; 4. Any activity that may moderately affect or alter sandy beaches or sediment deposition; and 5. Activities that might require an Incidental Take Permit or Habitat Conservation Plan. Chapter 13-5 Exhibit 7 Exhibit 7, Hoala Loko Ia Program Standards Exclusions Activities that are explicitly excluded from authorization or consideration under the program are those projects that utilize any of the following: 1. Blasting; 2. Pile-driving, pre-drilling for pile-driving; 3. Activities that penetrate the pond floor; 4. New construction or dredging or in-water trenching not related to original fishpond structure/function; 5. Construction of new or expanded effluent discharge systems; 6. Construction of new bank stabilization structures; 7. Exploration or construction within estuaries or the marine environment that cannot be conducted from a work vessel or an existing bridge, dock, or wharf; 8. Any use of treated wood in marine or aquatic habitats (other than pressure-treated); 9. Actions determined for any reason by the technical advisory team to have a significant adverse environmental or cultural impact; 10. Use of chemicals inside or outside the fishpond to control or capture organisms; 11. Use of live rock or coral to construct or repair fishpond walls or other features; and 12. Actions that would cause extreme turbidity, purposeful damage to live rock or coral, extreme eutrophication, or other long-term impairment to water quality. Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards Exhibit 8 Small Scale Beach Restoration Program Standards: under development Purpose The SSBR Permitting Program provides a structured process for assessing proposed beach management (sand pushing, sand bypassing and sand backpassing) and beach restoration (sand or cobble nourishment) projects for volumes of sand or cobbles up to 20,000yd3. Eligibility Existing and historical beaches of the six Main Hawaiian Islands are eligible for application under this program, except for beaches within a designated protected area, including but not limited to, Community Based Subsistence Fishing Area (CBSFA), Marine Life Conservation District (MLCD), Natural Area Reserve (NAR), Forest Reserve, Wildlife Sanctuary or other designated area for which statutes or administrative rules prohibit the activities covered by SSBR. Beaches within designated protected areas for which the statutes or administrative rules allow for the activities covered by SSBR may also be subject to additional specific permit requirements pursuant to the statutes or administrative rules applicable to the protected area. Activities: Beach nourishment: Placement of beach compatible sand to rebuild lost and narrowed beaches. Nourishment projects may include dredging of offshore sand sourced from the same littoral cell as the proposed placement. Nourishment projects may also include the construction of minor, shore perpendicular sand retention groins. Dune restoration: Dune restoration is the process of working with the natural processes of sand accumulation and vegetation growth to encourage buildup of healthy dunes over time. Sand Pushing: Moving sand through mechanical means to the dune or upper beach. Sand Backpassing: Moving sand within a littoral cell typically through mechanical means from an area of chronic or seasonal accretion (e.g. stream mouth) back to its source. Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards Sand Bypassing: Moving sand typically through mechanical means around an obstruction to artificially facilitate littoral sand migration. Permit Processing The Office of Conservation and Coastal Lands will assign completed applications to one six categories for processing. Category IA: Sand pushing, backpassing and bypassing above mean high water not in a designated protected area for which these activities require individual permitting. These activities will be permitted as Site Plan Approvals. Category IB: Sand pushing, backpassing and bypassing which includes activity above and below mean high water not in a designated protected area for which these activities require individual permitting. These activities will be permitted as Site Plan Approvals. Category II: Beach nourishment ≤1000 yd3 without minor groins not in a designated protected area for which these activities require individual permitting. These activities will be permitted as Site Plan Approvals. Category IIIA: Beach nourishment projects >1,000 yd3 ≤ 10,000 yd3, without minor groins, and all sand pushing, backpassing or bypassing projects up within a protected area for which these activities require individual permitting. These activities will be permitted as Departmental Permits. Category IIIB: Beach nourishment ≤ 10.000 yd3 with minor groins. These activities will be permitted as Departmental Permits. Category IV: Beach nourishment >10,000 yd3 ≤ 20,000 yd3 (with or w/out minor groins). These activities will be permitted as Departmental Permits. Limitations Sand Quality: Only beach-compatible fill will be placed on the beach or in any associated dune system. Beach compatible fill should maintain the general character and functionality of the beach and the adjacent dune and coastal system and should be Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards similar in composition, grain size distribution, color, and texture. If the native or existing beach exceeds any of the limiting parameters listed below, then the beach fill should not exceed the measured level for that parameter. The beach-compatible fill shall not contain: • Greater than two percent (2%), by weight, silt, clay, or colloids passing the #230 sieve (4.0φ); • Greater than fifty percent (50%), by weight, very fine sand passing the #120 sieve (3.0φ); • Greater than ten percent (10%), by weight, fine gravel retained on the #4 sieve(-2.25φ); • Coarse gravel, cobbles, or material retained on the ¾ inch sieve (-4.25φ) in a percentage or size greater than that found on the native or existing beach; • Construction debris, toxic material, or other foreign matter; and, • Material that results in cementation of the beach. Exclusions The following activities are excluded from permitting under SSBR in accordance with the Final Environmental Assessment and Finding of No Significant Impact issued on 8 Aug, 2020: 1. Sea walls and revetments (rock, concrete, rubble, etc) are shoreline hardening and are prohibited under state law. 2. Temporary shoreline protection structures such as sandbags or burritos arranged parallel to the shoreline. 3. Buried revetments. 4. Large T-head groins. 5. Constructing multiple projects within the same beach. 6. Activities that are likely to have significant negative impacts (as defined in HAR 200.1*) on marine life, water quality, coastal processes, or shoreline access. 7. Activities which may cause significant adverse impacts (as defined in HAR 200.1) to cultural resources including disruption of known or likely burial sites. 8. Activities determined to have a significant adverse environmental impact during the community and agency review process. 9. Actions or activities likely to result in significant damage to special aquatic sites such as wetlands, vegetated shallows, mudflats, coral reefs, and seagrass beds. Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards 10. Actions or activities impacting a CBSFA or MLCD in a way that is inconsistent with the purpose and intent of the designated area. 11. Activities that would impair public access to the beach or adversely impact lateral access along the shoreline. 12. Actions or activities that are likely to result in the take of endangered, threatened, or otherwise protected species. 13. Long-term beach fill stockpiling for future projects. 14. Placement of any non-beach quality or compatible fill. 15. Actions that would cause extreme turbidity, purposeful damage to live rock or coral, extreme eutrophication, or other long-term impairment to water quality. Best Management Practices (BMP) Plan Requirements Permittees will be required to develop and implement a site- specific BMP Plan. The BMP plan shall be designed, implemented, operated, and maintained by the owner and/or its duly authorized representative in a manner to properly isolate, confine and control the excavation and fill activity and to contain and prevent any potential pollutant(s) discharges from adversely impacting the State waters. The BMP Plan must contain, at a minimum, the individual BMP elements listed below. General Construction Best Management Practices 1. Public Safety Best Management Practices 2. Cultural Resources Best Management Practices 3. Air Quality Best Management Practices 4. Water Quality Best Management Practices 5. Noise Best Management Practices 6. Essential Fish Habitat Best Management Practices 7. Threatened and Endangered Species Best Management Practices Additional BMP Plan elements may be required as determined by OCCL in coordination with Resource Agencies for specific projects. BMP specifics are contained in the detailed SSBR permitting guidelines. Additional Plan Requirements As indicated by the site-specific project conditions, quality and monitoring plans shall be required for each of the permit categories as listed below: 1. Ka Pa’akai Analysis: all projects, appropriately scaled Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards to the scope of the individual project. 2. Community Engagement Plan and Report: all projects. 3. Sediment QA/QC Plan: all Category IB to Category IV projects 4. Turbidity Control Plan: all Category IB to Category IV projects 5. Construction QA/QC Plan: all Category IB to Category IV projects 6. Marine Ecosystem Monitoring: all Category IIIA, IIIB and IV projects 7. Project Performance Monitoring Plan: all Category IIIB and IV projects. Monitoring plans must be approved by Resource Agencies during the application review process and provide objective measures for determining impacts and project success or failure. 8. Other Plans as determined by OCCL in coordination with Resource Agencies. Conditions In addition to the standard conditions for all land uses pursuant to HAR §13-5-42, the following special conditions apply to all SSBR permitted projects. 1. The permittee, if not a public entity, shall submit a certified shoreline. In limited cases, OCCL may allow substitution of a shoreline survey if a project results in the removal of an encroachment. The location of the certified shoreline shall not be altered makai by the work completed under this permit. 2. The permittee shall provide public notice prior to commencement of work and will post all permits in public locations that will be readily visible and available to the public, including phone numbers for emergency contacts and public comments. 3. The permittee shall notify the OCCL in writing prior to the initiation and upon completion of the project; and shall comply with all applicable notification requirements of the relevant County Planning Department. 4. Should historic remains such as artifacts, burials or concentration of charcoal be encountered during construction activities, work shall cease immediately in the vicinity of the find, and the find shall be protected from further damage. The contractor shall immediately contact SHPD (692-8015), which will assess the significance of the find and recommend an appropriate mitigation measure, if necessary. Chapter 13-5 Exhibit 8 Exhibit 8, Small Scale Beach Restoration Program Standards 5. The permittee shall minimize impact to lateral access and passage along the beach during construction. Access must not be continually obstructed during the construction period allocated in Standard Condition 8 (HAR 13-5-42). 6. Work will not occur at night.