Q. In Kane'ohe Bay on O'ahu, there are numerous stretches of the coastline that do not have a beach but rather, the 'aina ends abruptly with a seawall that is about 2 to 5 feet high. Walking along the makai side of the seawall is not possible due to the depth of the ocean, so is it OK to walk on top of the seawall? Would this be considered the high water mark?

— Mike Waggoner, Kane'ohe

A. There's no easy answer, and this might be something for the Legislature to address.

I checked with a couple of attorneys and with Sam Lemmo, the state's administrator of the Division of Conservation and Coastal Lands, and the answer is that under current law, you probably do not have access across the top of many private seawalls — although in some situations you might.

"I don't have a definitive answer to that. Each situation would be unique," Lemmo said. "I wouldn't recommend you attempt it (crossing the top of a seawall fronting private property) until you review the situation."

There is no law that guarantees the public access across the top of seawalls in cases in which the ocean is washing up against the base of the seawall.

Lemmo said while a liberal approach to public lateral coastal access is state policy, many such seawalls lack any government requirement that permits public access.

"I think we have the authority" to require public access in new seawall construction, but few new seawalls are being permitted at all today, and access has not always been required in the past, Lemmo said.

Attorneys I consulted differed somewhat on the issue.

One said a private seawall that's not on public land is likely not available for public access. It's private property.

Another argued that if the seawall blocks the normal wash of the waves, then the effective zone of public property — the high wash of the waves — is inland of the seawall, but he conceded you might need to be willing to fight that position in court.

"I'm not sure it's a settled issue, and it may be the next big issue in shoreline access questions," the second lawyer said.

There may be situations where government agencies have required private owners to let the public pass. In other situations, even though a private individual built the wall, "it's not out of the question that the seawall could be on public land," he said. In that case, the public would probably have legal access across it.

In some situations, notably in Waikiki, the state has acquired public access easements over seawalls.

If you have a question or concern about the Hawaiian environment, drop a note to Jan TenBruggencate at P.O. Box 524, Lihu'e, HI 96766 or jant@honoluluadvertiser.com. Or call him at (808) 245-3074.