HB 2102: Office of Hawaiian Affairs Package; Historic Preservation Review; Exclusions

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 the protection of iwi kupuna (ancestral remains) and cultural and historic resources is a matter of utmost importance.  The Hawaii State Constitution requires the State to safeguard iwi kupuna as part of its public trust obligations and to protect the exercise of Native Hawaiian traditional and customary practices.  These constitutional obligations have long been implemented under the historic preservation review process to ensure that potential impacts are carefully identified and assessed, and to provide lineal and cultural descendants with meaningful opportunities to guide the treatment of iwi kupuna through the island burial councils.

     Accordingly, the purpose of this Act is to reaffirm the State's commitment to safeguard iwi kupuna and other cultural and historic resources and to restore the integrity of the State's historic preservation program by clarifying and expanding the types of proposed projects for privately-owned residential properties that are subject to historic review.

     SECTION 2.  Section 6E-42.2, Hawaii Revised Statutes, is amended to read as follows:

     "§6E-42.2  Excluded activities for privately-owned [single-family detached dwelling units and townhouses, residential projects, and nominally sensitive areas.] residential properties.  (a)  An application for a proposed project on [an existing] a privately-owned [single-family detached dwelling unit or townhouse] residential property shall be subject to the requirements of section 6E-42 only if [the single-family detached dwelling unit or townhouse] the proposed project involves the modification of a residential structure that is over fifty years old and [is:] one or more of the following applies:

     (1)  [Listed] The proposed project is listed on the Hawaii or national register of historic places, or both;

     (2)  [Nominated] The proposed project is nominated for inclusion on the Hawaii or national register of historic places, or both; or

     (3)  [Located] The proposed project is located in a nationally, state-, or locally designated historic district[.];

     (4)  The proposed project involves ground-disturbing activity and:

          (A)  Occurs on land containing sandy soils, lava tubes, karst features, or caves; and

          (B)  The ground-disturbing activity exceeds the excavation of topsoil and occurs on, or adjacent to, land that contains:

              (i)  Previously identified burials or cemeteries; or

             (ii)  A historic property previously determined to have an important value to native Hawaiians or to another ethnic group of the State due to associations with cultural practices once carried out, or still carried out, at the property or due to associations with traditional beliefs, events, or oral accounts important to native Hawaiians or another ethnic group connected to the State's history and cultural identity; or

     (5)  The proposed project contains five or more dwelling units, and ground-disturbing activity is deeper than the depth of the deepest existing foundation on the parcel.

     [(b)  An application for a proposed project on an existing residential property shall be subject to the requirements of section 6E-42 only if the existing residential property is over fifty years old and is registered on the Hawaii register of historic places.

     (c)] (b)  An application for a proposed project in a nominally sensitive area shall not be subject to the requirements of section 6E-42.

     [(d)] (c)  For the purposes of this section:

     "Dwelling unit" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating, and sanitation.

     ["Nominally sensitive area" means a project area that is known to include a low density of historic, cultural, or archaeological resources, or where the project area has been substantially disturbed by previous excavation or other ground-disturbing work and no significant historic properties have been previously identified.]

     "Ground-disturbing activity" means any activity that disturbs, penetrates, displaces, or excavates soil or subsurface materials, including grading, trenching, digging, augering, drilling, post-hole installation, foundation work, utility installation, excavation, or landscaping activities that disturb the ground surface.

     "Karst" means a landform characterized by subsurface cavities, voids, or solution features formed by the dissolution of soluble rock, including caves, sinkholes, and underground drainage features.

     "Nominally sensitive area" means a project area that is known to include a low density of historic, cultural, or archaeological resources, or where the project area has been substantially disturbed by previous excavation or other ground-disturbing work and no significant historic properties have been previously identified, or as otherwise defined by the department, in coordination with the counties, through rules adopted pursuant to chapter 91.

     "Sandy soil" means soil classified by the United States Department of Agriculture Natural Resources Conservation Service as sand, loamy sand, sandy loam, or fine sandy loam, including Jaucas sands, beaches sand, and other coastal or aeolian sand deposits.

     ["Single-family detached dwelling unit" means an individual, freestanding, unattached dwelling unit, typically built on a lot larger than the structure itself, resulting in an area surrounding the dwelling.]

     "Topsoil" means the uppermost naturally occurring soil layer characterized by organic material and biological activity, typically extending to a depth of approximately twelve inches below the ground surface, or to the depth of the naturally occurring organic horizon, whichever is less.

     "Townhouse" has the same meaning as in section 502C-1."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect on July 1, 3000.

Report Title:

Office of Hawaiian Affairs Package; Historic Preservation Review; Exclusions

Description:

Clarifies and expands the types of proposed projects for privately-owned residential properties that are subject to historic review.  Effective 7/1/3000.  (HD1)

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

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 the protection of iwi kupuna (ancestral remains) and cultural and historic resources is a matter of utmost importance.  The Hawaii State Constitution requires the State to safeguard iwi kupuna as part of its public trust obligations and to protect the exercise of Native Hawaiian traditional and customary practices.  These constitutional obligations have long been implemented under the review process established in chapter 6E, Hawaii Revised Statutes, to ensure that potential impacts are carefully identified and assessed, and to provide lineal and cultural descendants with meaningful opportunities to guide the treatment of iwi kupuna through the island burial councils.

     The legislature further finds that recent statutory changes introduced new exemptions to the historic preservation review process that significantly weaken its protective framework.  Allowing certain types of projects to avoid review significantly heightens the risk of inadvertent discovery, disturbance, and destruction of iwi kupuna, especially if the projects involve ground-disturbing activities in culturally sensitive areas.  Similarly, the arbitrary creation of land sensitivity categories in statute without prior proper surveys has the effect of excluding from review large areas that are likely to contain iwi kupuna or other cultural and historic sites.  Designation of land sensitivity areas should only be implemented by historic preservation professionals.

     The legislature further finds that increases in inadvertent discoveries of iwi kupuna will diminish the decision-making role of the island burial councils, thereby curtailing the voices of descendants in matters directly affecting their kupuna.  This skirting of consultation and oversight undermines constitutional protections for Native Hawaiian traditional and customary practices and the public trust in preserving Hawaii's cultural resources.

     Accordingly, the purpose of this Act is to reaffirm the State's commitment to safeguard iwi kupuna and other cultural and historic resources and to restore the integrity of the State's historic preservation program by:

     (1)  Clarifying that a residential project involving ground disturbance in high-risk areas remains subject to review; and

     (2)  Removing the historic review exemption for lands presumed nominally sensitive.

     SECTION 2.  Section 6E-42.2, Hawaii Revised Statutes, is amended to read as follows:

     "§6E-42.2  Excluded activities for existing privately-owned [single-family detached dwelling units and townhouses, residential projects, and nominally sensitive areas.] low-unit residential properties.  (a)  An application for a proposed project on an existing privately-owned [single-family detached dwelling unit or townhouse] low-unit residential property shall be subject to the requirements of section 6E-42 only if [the single-family detached dwelling unit or townhouse is over fifty years old and is:] one or more of the following applies:

     (1)  The proposed project involves the modification of an existing residential structure that is more than fifty years old and is:

    [(1)] (A)  Listed on the Hawaii or national register of historic places, or both;

    [(2)] (B)  Nominated for inclusion on the Hawaii or national register of historic places, or both; or

    [(3)] (C)  Located in a historic district[.]; or

     (2)  The proposed project involves ground-disturbing activity and:

          (A)  Occurs on, or adjacent to, land containing sandy soils; or

          (B)  The ground-disturbing activity exceeds the excavation of topsoil and occurs on, or adjacent to, land that contains:

              (i)  Previously identified burials or cemeteries;

             (ii)  Lava tubes, karst features, or caves; or

            (iii)  A historic property previously determined to be significant under criterion "e" of either section 13-284-6(b)(5) or 13-275-6(b)(5), Hawaii Administrative Rules.

     [(b)  An application for a proposed project on an existing residential property shall be subject to the requirements of section 6E-42 only if the existing residential property is over fifty years old and is registered on the Hawaii register of historic places.

     (c)  An application for a proposed project in a nominally sensitive area shall not be subject to the requirements of section 6E-42.

     (d)] (b)  For the purposes of this section:

     "Dwelling unit" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating, and sanitation.

     ["Nominally sensitive area" means a project area that is known to include a low density of historic, cultural, or archaeological resources, or where the project area has been substantially disturbed by previous excavation or other ground-disturbing work and no significant historic properties have been previously identified.]

     "Existing privately-owned low-unit residential property" means a property that has previously been zoned residential and maintains previously constructed residential structures consisting of one or more single-family detached dwelling units, townhouses, accessory dwelling units, or multi-family dwellings; provided that the property contains no more than four dwelling units in total.

     "Ground-disturbing activity" means any activity that disturbs, penetrates, displaces, or excavates soil or subsurface materials, including grading, trenching, digging, augering, drilling, post-hole installation, foundation work, utility installation, excavation, or landscaping activities that disturb the ground surface.

     "Karst" means a landform characterized by subsurface cavities, voids, or solution features formed by the dissolution of soluble rock, including caves, sinkholes, and underground drainage features.

     "Sandy soil" means soil classified by the United States Department of Agriculture Natural Resources Conservation Service as sand, loamy sand, sandy loam, or fine sandy loam, including Jaucas sands, beaches sand, and other coastal or aeolian sand deposits.

     "Single-family detached dwelling unit" means an individual, freestanding, unattached dwelling unit, typically built on a lot larger than the structure itself, resulting in an area surrounding the dwelling.

     "Topsoil" means the uppermost naturally occurring soil layer characterized by organic material and biological activity, typically extending to a depth of approximately twelve inches below the ground surface, or to the depth of the naturally occurring organic horizon, whichever is less.

     "Townhouse" has the same meaning as in section 502C-1."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

Report Title:

Office of Hawaiian Affairs Package; Historic Preservation; Exclusions

Description:

Clarifies that residential projects involving ground disturbance in high-risk areas remains subject to review under the State Historic Preservation Program.  Removes the historic review exemption for lands presumed nominally sensitive.

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

STAND. COM. REP. NO.  222-26

Honolulu, Hawaii

                , 2026

RE:   H.B. No. 2102

      H.D. 1

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Madame:

     Your Committee on Housing, to which was referred H.B. No. 2102 entitled:

"A BILL FOR AN ACT RELATING TO HISTORIC PRESERVATION,"

begs leave to report as follows:

     The purpose of this measure is to:

     (1)  Clarify that residential projects involving ground disturbance in high-risk areas remain subject to review under the State Historic Preservation Program; and

     (2)  Remove the historic review exemption for lands presumed nominally sensitive.

     Your Committee received testimony in support of this measure from the Office of Planning and Sustainable Development; Office of Hawaiian Affairs; Kailua Kau Hoʻoilo; Native Hawaiian Legal Corporation; Kailua Hawaiian Civic Club; Na Wai Hoʻola Nui Laʻau Lapaʻau Foundation; Kahua O Kakou, Corp.; Kūpuna for the Moʻopuna; and numerous individuals.  Your Committee received testimony in opposition to this measure from NAIOP Hawaii.  Your Committee received comments on this measure from the Department of Land and Natural Resources and Department of Planning and Permitting of the City and County of Honolulu.

     Your Committee finds that the protection of iwi kupuna and other culturally significant resources is a constitutional obligation and is central to safeguarding Native Hawaiian traditional and customary practices.  However, your Committee acknowledges that maintaining an exemption from historic review for projects located in nominally sensitive areas is prudent to ensure that the Department of Land and Natural Resources can efficiently and effectively conduct historic reviews while exercising its due diligence.  Your Committee believes that restoring review requirements for certain residential projects, while retaining the exemption for nominally sensitive areas, will strengthen cultural protections while also upholding the State's responsibility to preserve historic and ancestral resources.

     Accordingly, your Committee has amended this measure by:

     (1)  Clarifying that excluded activities for historic review are for privately-owned residential properties, rather than existing privately-owned low-unit residential properties, and deleting the definition of "existing privately-owned low-unit residential property";

     (2)  Specifying that all proposed projects for privately-owned residential properties shall be subject to historic review if the projects involve modification of a residential structure that is more than fifty years old and meets additional criteria;

     (3)  Specifying that a proposed project that meets certain requirements and is located in a nationally, state-, or locally designated historic district is subject to historic review;

     (4)  Clarifying the types of privately-owned proposed projects that involve ground-disturbing activity and are therefore subject to historic review;

     (5)  Expanding the types of proposed projects that would trigger a historic review;

     (6)  Reinstating the definition of, and language relating to, nominally sensitive areas and clarifying that the Department of Land and Natural Resources, in coordination with the counties, may otherwise define "nominally sensitive area";

     (7)  Changing the effective date to July 1, 3000, to encourage further discussion; and

     (8)  Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Housing that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2102, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2102, H.D. 1, and be referred to your Committee on Water & Land.

Respectfully submitted on behalf of the members of the Committee on Housing,