THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO HISTORIC PRESERVATION REVIEWS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that section 6E-42, Hawaii Revised Statutes, occupies an essential role in the protection and management of the State's historic places, burial sites, and aviation artifacts. Section 6E-42 requires agencies and officers of the State and its subdivisions, prior to project approval, to submit all projects that may affect historic properties to the department of land and natural resources' state historic preservation division for review. However, due to the current demand for the construction of housing and critical infrastructure, the state historic preservation division has an unacceptably large backlog of projects needing review.
The purpose of this Act is to allow the state historic preservation division, in consultation with the office of Hawaiian affairs, to delegate to the impacted counties the responsibility for historic preservation project reviews; provided that certain requirements are met.
SECTION 2. Section 6E-42, Hawaii Revised Statutes, is amended to read as follows:
"§6E-42 Review of proposed projects. (a) Except as provided in section 6E-42.2, 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 may delegate responsibility for review of projects pursuant to this section, and pursuant to any administrative rules adopted thereunder, to the respective counties; provided that the department, in consultation with the office of Hawaiian affairs, has certified that the county has:
(1) Adopted an ordinance to govern the county's review process in accordance with the procedures set forth in this chapter and the department's applicable administrative rules;
(2) Hired qualified professional staff who meet the standards established by the department to conduct the reviews;
(3) Established sufficient internal organizational controls to ensure that the qualified professional staff can make independent determinations regarding the effects of projects on historic properties;
(4) Ensured that the qualified professional staff can function in a manner that does not create a conflict of interest or an appearance of a conflict of interest;
(5) Provided for appropriate public notification in a manner consistent with standards established by the department; and
(6) Entered into a written agreement with the department memorializing the scope of delegation to the county;
provided further that the delegation of authority shall automatically be suspended or terminated if the county fails to retain its qualified professional staff or if it becomes apparent that the county does not have sufficient staffing capacity to complete the delegated reviews in a timely manner.
(d) The department shall not delegate reviews to the county for projects affecting properties listed in the Hawaii register of historic places or the national register of historic places.
(e) The department shall not delegate any responsibility established by sections 6E-43, 6E-43.5 and 6E‑43.6 as it relates to burials, nor shall the authority of the island burial councils be diminished in any way.
(f) The department may establish a program to certify third-party individuals and organizations to review documents prior to submission of the documents to the department for review. A review by a third-party shall ensure that the information submitted is complete and complies with the department's documentation requirements, that any accompanying data and analysis supports the recommendations made in the submission, and that the project reviewed complies with all of the requirements imposed by the department and this chapter. Third-party reviewers certified by the department shall satisfy the following requirements:
(1) Staff who conduct the reviews shall meet professional qualifications and standards established by the department;
(2) Individuals and organizations that apply for certification shall demonstrate that they have established sufficient internal organizational controls to ensure that the qualified professional staff can make independent determinations regarding the effects of projects on the properties reviewed and can function in a manner that does not create a conflict of interest or an appearance of a conflict of interest; and
(3) Individuals or organizations certified to conduct third-party document reviews shall be independent from the project reviewed and shall not have participated, directly or indirectly, in drafting or generating the project documents reviewed.
(c)] (g) The department shall adopt rules in
accordance with chapter 91 to implement this section."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
DLNR; State Historic Preservation Division; Office of Hawaiian Affairs; Project Reviews
Authorizes the Department of Land and Natural Resources, in consultation with the Office of Hawaiian Affairs, to delegate to the impacted counties the responsibility for certain historic preservation project reviews, provided that certain requirements are met. Allows the Department of Land and Natural Resources to establish a program to certify third-party individuals and organizations to review documents for completeness and compliance prior to submission of those documents to the Department; provided that certain requirements are met. (SD1)
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