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THE SENATE |
S.B. NO. |
2341 |
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THIRTY-THIRD LEGISLATURE, 2026 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to historic preservation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 6E-10, Hawaii Revised Statutes, is amended to read as follows:
"§6E-10 Privately owned historic property.
(a) Before any construction,
alteration, disposition,
or improvement of any nature, by, for, or permitted by a private landowner may
be commenced that will affect a
historic property on the Hawaii register of historic places, the landowner
shall notify the department of the construction, alteration, disposition, or
improvement of any nature and allow the department the opportunity to review the effect of
the proposed construction, alteration, disposition, or improvement of any
nature on the historic property. If:
(1) The proposed construction, alteration,
disposition, or improvement consists of corridors or large land areas;
(2) Access to the
property or properties is restricted; or
(3) Circumstances
dictate that construction,
alteration, disposition, or improvement be done in stages,
the department's review may be based on a phased
review of the project; provided that there shall be an agreement between the
department and the property owner that identifies each phase and the estimated
timeline of each phase.
(b)
The department shall provide written concurrence or non-concurrence
within ninety days, or within thirty calendar days if no historical properties
are impacted by the proposed construction, alteration, disposition, or
improvement, after the department has processed a complete submittal filed by
the property owner. The department shall
process a complete submittal within five business days of its filing. The proposed construction, alteration,
disposition, or improvement of any nature shall not be commenced, or in the
event it has already begun, continue, until the department has given its [concurrence or ninety
days have elapsed. Within ninety days
after notification, the department shall:
(1) Commence
condemnation proceedings for the purchase of the historic property if the
department and property owner do not agree upon an appropriate course of
action;
(2) Permit the
owner to proceed with the owner's construction, alteration, or improvement; or
(3) In coordination
with the owner, undertake or permit the investigation, recording, preservation,
and salvage of any historical information deemed necessary to preserve Hawaiian
history, by any qualified agency for this purpose.
(b)] written concurrence or
non-concurrence. If the department fails
to provide written concurrence or non-concurrence within ninety days, or within
thirty calendar days if no historical properties are impacted by the proposed project,
after receiving and processing a true and complete submittal from the property
owner, the property owner may assume the department's concurrence for the
proposed project.
(c)
The property owner shall ensure any application filed by the property
owner for the proposed construction, alteration, disposition, or improvement is
complete and accurate. If the
department:
(1) Determines
the application is not a complete submittal;
(2) Requires
additional information or clarification regarding the physical scope of work;
or
(3) Requires
an archaeological survey or reconnaissance level survey for architectural
resources,
the department shall notify the property owner
and specify the additional information needed to meet the requirements for a
complete submittal. The review period for
the proposed 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)
Once the department has provided written concurrence or fails
to timely provide non-concurrence on the project effect determination and
any necessary mitigation measures have been identified and agreed upon for a
proposed project, the property owner 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 property owner 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 property owner 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 property owner shall proceed pursuant to section 6E-43 or 6E-43.6, or both, as appropriate.
[(c)] (e) Nothing in this section shall be construed to
prevent the ordinary maintenance or repair of any feature in or on a historic property that does not
involve a change in design, material, or outer appearance or change in those
characteristics that qualified the
historic property for entry onto the Hawaii register of historic places.
[(d)] (f) Any person, natural or corporate, who
violates the provisions of this section shall be fined not more than $1,000, and each day of continued violation shall
constitute a distinct and separate offense under this section for which the
offender may be punished.
[(e)] (g) If funds for the acquisition of needed
property are not available, the governor may, upon the recommendation of the
department, allocate from the
contingency fund an amount sufficient to acquire an option on the property or
for the immediate acquisition, preservation, restoration, or operation of the
property.
[(f)] (h) The department may enter, solely in
performance of its official duties and only at reasonable times, upon private
lands for examination or survey thereof.
Whenever any member of the department duly authorized to conduct
investigations and surveys of a
historic or cultural nature determines that entry onto private lands for
examination or survey of historic or cultural finding is required, the
department shall give written notice of the finding to the owner or occupant of
the property at least five days before
entry. If entry is refused, the member
may make a complaint to the district environmental court in the circuit in
which the land is located. The district environmental court may
thereupon issue a warrant, directed to any police officer of the circuit,
commanding the officer to take sufficient aid, and, being accompanied by a
member of the department, between the hours of sunrise and sunset, allow the
member of the department to examine or survey the historic or cultural
property."
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 officer shall advise the department and, before 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 provide written concurrence or non-concurrence
within ninety days, or within thirty calendar days if no historical properties
are impacted by the proposed project, 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.
(c)
The project applicant shall ensure that its application is complete and
accurate. If the department:
(1) Determines
the application is not a complete submittal;
(2) Requires
additional information or clarification regarding the physical scope of work;
or
(3) Requires
an archaeological survey or reconnaissance level survey for architectural
resources,
the department shall notify the applicant and
specify the additional information needed to meet the requirements for a
complete submittal. The review period
for the proposed 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.
[(b)] (d) Once the department has provided
written concurrence or fails to timely provide non-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 any of 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 any of 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 appropriate agency or officer of the State or any of its political subdivisions shall proceed pursuant to section 6E-43 or 6E-43.6, or both, as appropriate.
[(c)] (e) The department shall inform the public of any
project proposals submitted to the department under this section that are not
otherwise subject to the requirement of a public hearing or other public
notification.
[(d)] (f) Counties deriving and expending revenues on
mass transit stations pursuant to section 46-16.8 may request programmatic
review by the department for a
majority-residential mixed-use transit-oriented development or residential
transit-oriented development where a permit, license, certificate, land use
change, subdivision, or other entitlement may be required.
[(e)] (g) No later than January
1, 2026, the counties and the Hawaii community development authority shall work
with the department to identify and submit to the department specific parcels
and rights-of-way in proximity to mass transit stations where a majority-residential mixed-use
transit-oriented development, a
residential transit-oriented development, or infrastructure is specifically
consistent with a comprehensive general plan adopted pursuant to section 46-4; provided that the
counties and Hawaii community development authority shall:
(1) First consult with the department and agree through memorandum on the mass transit stations, and specific transit-oriented development parcels and rights-of-way, scoping the potential area for initiating programmatic review; and
(2) Then solicit requests and consent from non-county landowners to have their parcels and rights-of-way within the scoped area of the memorandum initiating programmatic review to proceed with the programmatic review process.
[(f)] (h) The department shall review all parcels and
rights-of-way submitted by the counties and the Hawaii community development
authority pursuant to the scoping memorandum and classify each parcel and
right-of-way, within six months of submittal, according to the risk that a majority-residential mixed-use
transit-oriented development or residential transit-oriented development may
pose to historic properties. The
classification shall be categorized into three categories, in order of potential effect level from high to low, in the categories of architecture,
archaeology, and history and culture; provided that:
(1) All county and non-county and Hawaii community development authority parcels and [rights-of-way] for programmatic review shall include the county's or the Hawaii community development authority's assessment of whether development on each parcel or right-of-way may affect historic property, aviation artifacts, or a burial site; and
(2) The assessment is based on:
(A) The Hawaii or national register of historic places;
(B) The age of above-surface structures;
(C) Any existing archaeological inventory surveys previously accepted by the department;
(D) Any burial treatment plans accepted by the department;
(E) The type of substrate known to typically contain burials;
(F) Consultation with the:
(i) Relevant island burial council; and
(ii) Office of Hawaiian affairs; and
(G) Any other literary review relevant to the area.
[(g)] (i) The department shall work with the county
that made the submittal and the Hawaii community development authority to
develop and agree on permitting memoranda within three months of classification
regarding development best practices, including continued identification,
addressing levels of risk for the lower two effect levels in each of the
categories, including but not limited to creating photo inventories, conducting
an archaeological field survey, archaeological excavation, or onsite archaeological
monitoring, and the presence of onsite archaeological monitoring, and consider
these best practices as standardized for activities conducted under this
section.
A county and the Hawaii community
development authority shall incorporate by reference these best practices as
conditions of approval for any project involving a permit, license,
certificate, land use change, subdivision, or other entitlement for use.
[(h)] (j) Parcels and rights-of-way identified by the
department where all categories are rated in the lower two effect levels shall
be considered to comply with [subsections] subsection (a) or [(b)]
(d) or section 6E-8 regarding state or county lands or projects, and any
subsequent permit, license, certificate, land use change, subdivision, or other
entitlement for use shall not require referral to or written concurrence from
the department on project effect determination and mitigation measures;
provided that:
(1) The project is or includes infrastructure to support the development of:
(A) A majority-residential mixed-use transit-oriented development; or
(B) A residential transit-oriented development;
(2) The project has reached substantial construction by June 30, 2036; and
(3) Development activities have commenced consistent with best practices to address the applicable level of risk.
[(i)] (k) Any parcels or rights-of-way characterized as
highest risk shall require referral to the department pursuant to subsection
(a).
[(j)] (l) Section 6E-43.6 shall apply in the event of
an inadvertent discovery of a burial site.
[(k)] (m) The Hawaii housing finance and development
corporation may submit to the department any additional parcels or
rights-of-way for programmatic review if the counties do not provide a
submittal pursuant to subsection [(e);] (g); provided that the
same analysis shall be conducted pursuant to subsection [(f),] (h),
and the department shall classify the submittal within six months of receipt.
[(l)] (n) The Hawaii community
development authority may submit parcels or rights-of-way within its
jurisdiction to the department for review, and any parcels or rights-of-way
identified by the department for which all categories are rated in the lower
two effect levels shall be considered to comply with [subsections] subsection
(a) or [(b)] (d) or section 6E-8 regarding state or county lands
or projects, and any subsequent permit, license, certificate, land use change,
subdivision, or other entitlement for use shall not require referral to the
department; provided that:
(1) The project is or includes infrastructure to support the development of:
(A) A majority-residential mixed-use transit-oriented development; or
(B) A residential transit-oriented development;
(2) The project has reached substantial construction by June 30, 2036;
(3) Development activities have commenced consistent with best practices to address the applicable level of risk; and
(4) The department shall classify the submittal within six months of receipt.
[(m)] (o) The department shall adopt rules in
accordance with chapter 91 to implement this section.
[(n)] (p) For the purposes of this section, "majority-residential mixed-use
transit-oriented development" means a mixed-use transit-oriented
development project where the majority of the project is residential and may
include off-site infrastructure."
SECTION 3. 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 that may affect historic property, aviation artifacts, or a burial site, the agency or officer shall advise the department and, before 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 provide written concurrence or non-concurrence
within ninety days, or within thirty calendar days if no historical properties
are impacted by the proposed project, after the filing of a request with the
department. If the department fails to
provide a 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.
(c)
The project applicant shall ensure that its application is complete and
accurate. If the department:
(1) Determines
the application is not a complete submittal;
(2) Requires
additional information or clarification regarding the physical scope of work;
or
(3) Requires
an archaeological survey or reconnaissance level survey for architectural
resources,
the department shall notify the applicant and
specify the additional information needed to meet the requirements for a
complete submittal. The review period
for the proposed 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.
[(b)] (d) 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 any of 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 any of 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 appropriate agency or officer of the State or any of its political subdivisions shall proceed pursuant to section 6E-43 or 6E-43.6, or both, as appropriate.
[(c)] (e) The department shall inform the public of any
project proposals submitted to the department under this section that are not
otherwise subject to the requirement of a public hearing or other public
notification.
[[(d)]] (f) Whenever the 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:
(2) The third-party
consultant has the qualifications and experience required by subsection [[(e)]]
(g) 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 and comment described under subsection (a) no later than sixty days after being advised pursuant to subsection (a); provided that this subsection shall not apply to projects that trigger section 106 of the National Historic Preservation Act of 1966, as amended.
[[(e)]] (g) Whenever the department retains any
third-party consultant, including any architect, engineer, archaeologist,
planner, or other professional, to review an application for a permit, license,
or approval under subsection [[(d)],] (f), 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.
[[(f)]] (h) 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.
[[(g)]] (i) Counties
deriving and expending revenues on mass transit stations pursuant to section
46-16.8 may request programmatic review by the department for a majority-residential mixed-use
transit-oriented development or residential transit-oriented development where
a permit, license, certificate, land use change, subdivision, or other
entitlement may be required.
[[(h)]] (j) No later
than January 1, 2026, the counties and the Hawaii community development
authority shall work with the department to identify and submit to the
department specific parcels and rights-of-way in proximity to mass transit
stations where a
majority-residential mixed-use transit-oriented development, a residential transit-oriented
development, or infrastructure is specifically consistent with a comprehensive
general plan adopted pursuant to section 46-4; provided that the
counties and Hawaii community development authority shall:
(1) First consult with the department and agree through memorandum on the mass transit stations, and specific transit-oriented development parcels and rights-of-way, scoping the potential area for initiating programmatic review; and
(2) Then solicit requests and consent from non-county landowners to have their parcels and rights-of-way within the scoped area of the memorandum initiating programmatic review to proceed with the programmatic review process.
[[(i)]] (k) The
department shall review all parcels and rights-of-way submitted by the counties
and the Hawaii community development authority pursuant to the scoping
memorandum and classify each parcel and right-of-way, within six months of
submittal, according to the risk that a majority-residential mixed-use transit-oriented development or
residential transit-oriented development may pose to historic properties. The classification shall be categorized into three categories, in order of potential effect level
from high to low,
in the categories of architecture, archaeology, and history and culture;
provided that:
(1) All county and
non-county and Hawaii
community development authority parcels and [[]rights-of-way[]]
for programmatic review shall include the county's or the Hawaii community development
authority's assessment of whether development on each parcel or
right-of-way may affect historic property, aviation artifacts, or a burial
site; and
(2) The assessment is based on:
(A) The Hawaii or national register of historic places;
(B) The age of above-surface structures;
(C) Any existing archaeological inventory surveys previously accepted by the department;
(D) Any burial treatment plans accepted by the department;
(E) The type of substrate known to typically contain burials;
(F) Consultation with the:
(i) Relevant island burial council; and
(ii) Office of Hawaiian affairs; and
(G) Any other literary review relevant to the area.
[[(j)]] (l) The
department shall work with the county that made the submittal and the Hawaii
community development authority to develop and agree on permitting memoranda
within three months of classification regarding development best practices,
including continued identification, addressing levels of risk for the lower two
effect levels in each of the categories, including but not limited to creating
photo inventories, conducting an archaeological field survey, archaeological
excavation, or onsite archaeological monitoring, and the presence of onsite
archaeological monitoring, and consider these best practices as standardized
for activities conducted under this section.
A county and the Hawaii community
development authority shall incorporate by reference these best practices as
conditions of approval for any project involving a permit, license,
certificate, land use change, subdivision, or other entitlement for use.
[[(k)]] (m) Parcels and
rights-of-way identified by the department where all categories are rated in
the lower two effect levels shall be considered to comply with [subsections]
subsection (a) or [(b)] (d) or section 6E-8 regarding
state or county lands or projects, and any subsequent permit, license,
certificate, land use change, subdivision, or other entitlement for use shall
not require referral to or written concurrence from the department on project
effect determination and mitigation measures; provided that:
(1) The project is or includes infrastructure to support the development of:
(A) A majority-residential mixed-use transit-oriented development; or
(B) A residential transit-oriented development;
(2) The project has reached substantial construction by June 30, 2036; and
(3) Development activities have commenced consistent with best practices to address the applicable level of risk.
[[(l)]] (n) Any parcels
or rights-of-way characterized as highest risk shall require referral to the
department pursuant to subsection (a).
[[(m)]] (o) Section
6E-43.6 shall apply in the event of an inadvertent discovery of a burial site.
[[(n)]] (p) The Hawaii
housing finance and development corporation may submit to the department any
additional parcels or rights-of-way for programmatic review if the counties do
not provide a submittal pursuant to subsection [[(h)];] (j); provided that the same
analysis shall be conducted pursuant to subsection [[(i)],] (k), and the department
shall classify the submittal within six months of receipt.
[[(o)]] (q) The Hawaii
community development authority may submit parcels or rights-of-way within its
jurisdiction to the department for review, and any parcels or rights-of-way
identified by the department for which all categories are rated in the lower
two effect levels shall be considered to comply with [subsections] subsection
(a) or [(b)] (d) or section 6E-8 regarding state or county lands
or projects, and any subsequent permit, license, certificate, land use change,
subdivision, or other entitlement for use shall not require referral to the
department; provided that:
(1) The project is or includes infrastructure to support the development of:
(A) A majority-residential mixed-use transit-oriented development; or
(B) A residential transit-oriented development;
(2) The project has reached substantial construction by June 30, 2036;
(3) Development activities have commenced consistent with best practices to address the applicable level of risk; and
(4) The department shall classify the submittal within six months of receipt.
[[(p)]] (r) The
department shall adopt rules in accordance with chapter 91 to implement this
section.
[[(q)]] (s) For the purposes of this section, "majority-residential mixed-use
transit-oriented development" means a mixed-use transit-oriented
development project where the majority of the project is residential and may
include off-site infrastructure."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect on July 1, 2026,
after the amendments made by Act 306, Session Laws of Hawaii 2025, to section
6E-42, Hawaii Revised Statutes, take effect; provided that section 3 of this
Act shall be repealed on June 30, 2030, and section 6E-42, Hawaii Revised
Statutes, shall be reenacted in the form in which it read on the day prior to
the effective date of Act 306, Session Laws of Hawaii 2025.
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INTRODUCED BY: |
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Report Title:
Historic Preservation; State Historic Preservation Division Review; Historic Properties; Private Properties; Project Review; Review Period
Description:
Authorizes SHPD to conduct a phased review of a proposed project on private property under certain circumstances. Amends the process and deadlines by which SHPD must provide written concurrence or non-concurrence for a proposed project on private property or other project that requires entitlement for use, after which concurrence may be assumed and the project may proceed.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.