THE SENATE

S.B. NO.

2369

TWENTY-SEVENTH LEGISLATURE, 2014

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to historic preservation.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that Act 85, Session Laws of Hawaii 2013 (Act 85), amended state law to authorize the state historic preservation division of the department of land and natural resources to conduct phased reviews of projects to be consistent with federal law. Act 85 was enacted in response to Kaleikini v. Yoshioka, 128 Haw. 53 (2012), in which the Hawaii Supreme Court held the state historic preservation division, acting on behalf of the department of land and natural resources, erroneously used federal regulations regarding phased reviews to support its decision to conduct phased reviews in Hawaii and violated administrative rules when the division allowed the Honolulu rapid transit corridor project to commence prior to the completion of a full archaeological inventory survey.

The legislature further finds that Act 85 specifies only one portion of the complex federal regulatory scheme providing for phased reviews and fails to import the applicable federal regulatory scheme in its entirety. Thus, Act 85 fails to make state law consistent with federal law. Instead, Act 85 increases confusion and uncertainty relating to the requirements and procedures of the historic preservation review process, which threatens Hawaii's significant and irreplaceable historic resources.

Furthermore, the legislature finds that phased reviews can be more appropriately addressed in the administrative rulemaking process rather than under statute. The administrative rulemaking process can provide a better opportunity for discussion and stakeholder input regarding phased reviews in order to develop appropriate rules, procedures, and criteria regarding various types of projects, and properly reflect the entire federal regulatory scheme.

The purpose of this Act is to repeal the authorization of phased reviews of projects by the department of land and natural resources' state historic preservation division under certain conditions.

SECTION 2. Section 6E-2, Hawaii Revised Statutes, is amended by deleting the definition of "programmatic agreement".

[""Programmatic agreement" means a document that sets forth the terms of a formal, legally binding agreement and establishes a process for consultation, review, and compliance with federal laws."]

SECTION 3. Section 6E-8, Hawaii Revised Statutes, is amended to read as follows:

"6E-8 Review of effect of proposed state projects. (a) Before any agency or officer of the State or its political subdivisions commences any project which may affect historic property, aviation artifact, or a burial site, the agency or officer shall advise the department and allow the department an opportunity for review of the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, especially those listed on the Hawaii register of historic places. The proposed project shall not be commenced, or if it has already begun, continued, until the department has given its written concurrence. [If:

(1) The proposed project consists of corridors or large land areas;

(2) Access to properties is restricted; or

(3) Circumstances dictate that construction be done in stages,

the department may give its written concurrence based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase.]

The department shall provide written concurrence or non-concurrence within ninety days after the filing of a request with the department. The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non-concurrence to the Hawaii historic places review board. An agency, officer, or other person who is dissatisfied with the decision of the review board may apply to the governor, who may take action as the governor deems best in overruling or sustaining the department.

(b) The department of Hawaiian home lands, prior to any proposed project relating to lands under its jurisdiction, shall consult with the department regarding the effect of the project upon historic property or a burial site.

(c) The State, its political subdivisions, agencies, and officers shall report to the department the finding of any historic property during any project and shall cooperate with the department in the investigation, recording, preservation, and salvage of the property.

[(d) The department shall adopt rules in accordance with chapter 91 to implement this section.]"

SECTION 4. Section 6E-42, Hawaii Revised Statutes, is amended to read as follows:

"6E-42 Review of proposed projects. (a) Before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. [If:

(1) The proposed project consists of corridors or large land areas;

(2) Access to properties is restricted; or

(3) Circumstances dictate that construction be done in stages,

the department's review and comment may be based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase.]

(b) The department shall inform the public of any project proposals submitted to it under this section that are not otherwise subject to the requirement of a public hearing or other public notification.

[(c) The department shall adopt rules in accordance with chapter 91 to implement this section.]"

SECTION 5. Statutory material to be repealed is bracketed and stricken.

SECTION 6. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Historic Preservation; Phased Reviews

 

Description:

Repeals the authorization of phased reviews of projects by the department of land and natural resources' state historic preservation division under certain conditions.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.