Review of proposed projects

[Section effective until June 30, 2026. For section effective July 1, 2026, see below.] (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) 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) 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) 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) 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) 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) 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) 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 (a) or (b) 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) Any parcels or rights-of-way characterized as highest risk shall require referral to the department pursuant to subsection (a). (j) Section 6E-43.6 shall apply in the event of an inadvertent discovery of a burial site. (k) 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); provided that the same analysis shall be conducted pursuant to subsection (f), and the department shall classify the submittal within six months of receipt. (l) 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 (a) or (b) 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) The department shall adopt rules in accordance with chapter 91 to implement this section. (n) 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.