§6E-8 Review of effect of proposed state projects. [Section effective until June 30, 2026. For section effective July 1, 2026, see below.] (a) Before any agency or officer of the State or its political subdivisions commences any project that may affect historic property, an aviation artifact, or a burial site, the lead agency shall render a determination on the potential effect of the project 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 been afforded the opportunity to review the project in compliance with this subsection. 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 an executed programmatic agreement in place between the department and the project applicant that identifies each construction phase and the estimated timelines for each phase, and any agreed upon mitigation measures.

(b) The department shall provide written concurrence or non-concurrence within ninety days, or within thirty calendar days if no historic properties are to be affected, after the filing of a request with the department. If the department fails to provide written concurrence or non-concurrence with a project effect determination within ninety days, or within thirty calendar days if no historic properties are to be affected, of receiving a true and complete submittal for a project, the lead agency may assume the department's concurrence and the project may move to the next step in the compliance process.

(1) Determines that the submittal is not a complete submittal;

(2) Requires additional information or clarification regarding the physical scope of work; or

(3) Requires an archaeological inventory survey or reconnaissance level survey for architectural resources,

the department shall notify the applicant and specify the information needed to meet the requirements for complete submittal. The review period for the project shall cease until a complete submittal is made to the department. Once the department has received a complete submittal, the applicable review period shall restart.

(d) The agency or officer seeking to proceed with the project, or any person, may appeal the department's concurrence or non-concurrence, or failure to provide written concurrence or non-concurrence within the applicable review period, 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.

(e) Once the department has provided written concurrence on the project effect determination and any necessary mitigation measures have been identified and agreed upon for a proposed project, the appropriate agency or officer of the State or any of its political subdivisions may commence the project, and the project shall be exempt from further review by the department unless there is a change to the project's physical scope of work or project area or unless additional historic properties, aviation artifacts, or burial sites are identified within the project area; provided that:

(1) If there is a change in the project's physical scope of work or project area or if additional historic properties or aviation artifacts are identified within the project area post-review, the appropriate agency or officer of the State or its political subdivisions shall notify the department within forty-eight hours of the discovery. The notification shall include a description of the historic property or aviation artifact and propose actions to avoid, minimize, or mitigate adverse effects. The department shall respond within five business days of the notification with an assessment of the historic property or aviation artifact and shall provide concurrence or non-concurrence with the actions proposed to avoid, minimize, or mitigate adverse effects. The appropriate agency or officer of the State or its political subdivisions shall provide the department with a report of the agreed upon actions when they are completed; and

(2) If a burial site is inadvertently discovered, the lead agency shall proceed pursuant to section 6E-43 or 6E-43.6, or both, as appropriate.

(f) The department of Hawaiian home lands, before 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.

(g) The State and 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.

(h) The department shall adopt rules in accordance with chapter 91 to implement this section.

(i) For the purposes of this section, "lead agency" means the entity with the designated responsibility for compliance with this section. The lead agency shall be decided by the agencies involved; provided that priority shall be given to the agency with the greater degree of involvement with the project. [L 1976, c 104, pt of §2; gen ch 1985; am L 1990, c 306, §7; am L 1995, c 187, §2; am L 1996, c 13, §1 and c 97, §7; am L 2008, c 228, §2; am L 2009, c 4, §2; am L 2013, c 85, §2; am L 2025, c 160, §3]

§6E-8 Review of effect of proposed state projects. [Section effective July 1, 2026. For section effective until June 30, 2026, see above.] [Repeal and reenactment on June 30, 2030. L 2025, c 306, §7(2).] (a) Before any agency or officer of the State or its political subdivisions commences any project that may affect historic property, an aviation artifact, or a burial site, the lead agency shall render a determination on the potential effect of the project 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 been afforded the opportunity to review the project in compliance with this subsection. 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,

(1) Determines that the submittal is not a complete submittal;

(2) Requires additional information or clarification regarding the physical scope of work; or

(3) Requires an archaeological inventory survey or reconnaissance level survey for architectural resources,

(2) If a burial site is inadvertently discovered, the lead agency shall proceed pursuant to section 6E-43 or 6E-43.6, or both, as appropriate.

(f) The department of Hawaiian home lands, before commencing 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.

[(h)] Whenever a proposed state project involves the development of residential units or mixed-use development, as long as a majority of the mixed-use development is residential, and after an initial evaluation, the department determines that:

(1) The department will not be able to provide its written concurrence or non-concurrence within sixty days of the filing of the request with the department;

(2) The third-party consultant has the qualifications and experience pursuant to subsection [(i)] to conduct the review; and

(3) The contract with the third-party consultant:

(A) Requires the third-party consultant to provide a recommendation to the department within thirty days of the date that the consultant is retained to conduct the review and comment; and

(B) Allows the department to reserve the right to determine whether use of a third-party consultant was appropriate and terminate the contract if the third-party consultant:

(i) Has evidenced insufficient compliance with the state historic preservation laws and rules; or

(ii) Has not completed assigned historic preservation reviews accurately,

then the department may retain a third-party consultant to conduct the review described under subsection (a) no later than sixty days after the filing of a request with the department; provided that this subsection shall not apply to projects that trigger section 106 of the National Historic Preservation Act of 1966, as amended.

[(i)] Whenever the department retains any third-party consultant, including an architect, engineer, archaeologist, planner, or other professional, to review an application for a permit, license, or approval pursuant to subsection [(h)], the third-party consultant shall:

(1) Meet the educational and experience standards as well as the qualifications for preservation professionals pursuant to rules adopted by the state historic preservation division;

(2) Follow state ethics rules; and

(3) Not review any project that the third-party consultant or the consultant's employer has previously worked on.

[(j)] The project proponent shall pay the reasonable fee requirements of the third-party consultant; provided that the project proponent may contract with or sponsor any county, housing authority, non-profit organization, or person to meet the fee requirements.

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

[(l)] For the purposes of this section, "lead agency" means the entity with the designated responsibility for compliance with this section. The lead agency shall be decided by the agencies involved; provided that priority shall be given to the agency with the greater degree of involvement with the project. [L 1976, c 104, pt of §2; gen ch 1985; am L 1990, c 306, §7; am L 1995, c 187, §2; am L 1996, c 13, §1 and c 97, §7; am L 2008, c 228, §2; am L 2009, c 4, §2; am L 2013, c 85, §2; am L 2025, c 160, §3 and c 306, §2]

Case Notes

Where rules implementing this section and §6E-42 required that historic properties be identified in the "project area", and the broad definition of "project area" contained in the rules encompassed the entire rail project, the rules did not permit the state historic preservation division (SHPD) to concur in the rail project absent a completed archeological inventory survey (AIS) for the entire project area; because an AIS was not completed before the SHPD gave its concurrence in the project, the SHPD's concurrence in and the city's commencement of the project were improper. 128 H. 53, 283 P.3d 60 (2012).