Shelve bill allowing phased AIS

Requiring an archaeological inventory survey (AIS) before a new project is built is one of the concessions Hawaii made to preserving its history. This includes the desire to save or at least record any unearthed historic and prehistoric finds, such as remnants of religious or agricultural structures and artifacts of the daily lives of ancient Hawaiians.

But the most emotional aspect of the state’s historic preservation law is the element of protection for Native Hawaiian burials that, by traditional practice, are encountered in scattered locations rather than in more sequestered burial grounds. The law authorized the creation of a network of grassroots burial councils, providing some assurance that burials are treated with respect.

If the law is altered the way that Senate Bill 1171 proposes, these safeguards for historic resources would be compromised, and the result may not be the more efficient construction timetables that the state wants.

The bill seeks to allow the AIS, in which the area is trenched to detect possible historic artifacts or burials, to be conducted for one phase at a time within a project. A "programmatic agreement" between the state and the applicant would identify each work phase and time frame.

The bill specifies that a project would qualify for this treatment if it "consists of corridors or large land areas" or if access to properties is restricted. The state Department of Land and Natural Resources may give its approval based on a phased review, according to the bill, if "circumstances dictate that construction be done in phases."

Critics rightly point out the vagueness of the language. Nonetheless, the legislation has passed both chambers and is poised to undergo conference committee negotiations.

The best outcome would be for it to be shelved there, at least until the state has time to examine further what may be the unintended consequences.

The entire discussion was prompted by a 2012 ruling of the state Supreme Court on the phased process the city was following in its elevated rail project planning. Because of the project’s unique 20-mile route stretching from Kapolei to Ala Moana, and the lack of clear barriers in state law against phasing the surveys, the city’s decision to proceed this way seemed a reasonable interpretation.

However, the high court ultimately ruled that the state law does not allow for a phased archaeological study. The justices ordered the developers, the Honolulu Authority for Rapid Transportation, to halt construction until the AIS is completed along the entire corridor.

That’s now been done, with the final reports now undergoing review, HART officials said. Although it required a real push, HART essentially has proven that, even for a project as extraordinary as rail, completing the survey in advance of construction is doable.

State officials have cited various projects, especially those such as road construction that follow long routes, as being too difficult to survey in their entirety before construction, with plans changing and other complications arising during the long project timetable.

But among those testifying in opposition, archaeologist Sara Collins said the circumstances for phasing a project should be defined more clearly, and in the administrative rules that flesh out the review process, not in statute.

Collins added that the State Historic Preservation Division, where she once worked, has conducted reviews of large, phased federal construction projects "largely without creating significant problems either for the agency doing the work or for the historic resources to be protected."

Another archaeologist, Julie Field, added that a finding discovered in a later phase can scotch a large project. She cited a Washington state dock project in which construction had to be abandoned when a burial ground was discovered.

Over the long term, projects tend to be completed most successfully when each step is taken in proper sequence. The historic preservation law should represent a commitment not to proceeding quickly but to fulfilling its mission work. SB 1171 would go counter to that goal.