Monday, August 31, 2009

Historic Hawaii Foundation Announces New Request for Proposals

Historic Hawaii Foundation requests proposals for an independent contractor to conduct an educational series of seminars into the architectural styles of the residences of Hawai‘i and programs for their preservation. The scope of the work will include developing the curriculum materials, conducting the seminars, and assisting with application for continuing education credits for professional organization certifications.

Proposals are due by Sept. 18, 2009. Please see the RFP for details about the project and submittal requirements. Questions may be directed to me at or 808/523-2900.

Star Bulletin suggests Rethinking the Plans the Demolish WWI Memorial

Rethink Natatorium plan
Hawaii Editorials -
Aug 29, 2009

Demolishing the Waikiki War Memorial Natatorium might not be the inexpensive way to deal with the deteriorating landmark that Mayor Mufi Hannemann was advised it would be. Previously unforeseen costs of demolition should cause the city to instead consider renovating and maintaining the memorial when it becomes feasible in a recovered economy.

Read the rest of the article...

Friday, August 28, 2009

The Indiscriminate Axe

Off My Desk
A. Kam Napier

August 2009: Honolulu, HI

Here’s a perfect example of government idiocy. Faced with a budget crunch, the state of Hawai‘i has proposed virtually eliminating two tiny, relatively inexpensive offices that actually make money for the state—the Hawai‘i state film commission and the State Foundation on Culture and the Arts. The film office is slated to lose four of its five staff (hat tip to the Star-Bulletin, more here). SFCA may lose 10 positions, including the executive director job, leaving one person to run the mandated Art in Public Places program, plus a handful of administrators (more on that here)."


National Trust Warns Mayor of Legal Challenges to Demolishing War Memorial

On Wednesday, August 26, Brian Turner, Regional Attorney of the National Trust for Historic Preservation wrote a letter to Collins Lam, of Mayor Hanneman's staff and the Chairperson of the Mayor's Task Force on the Waikiki War Memorial Natatorium reminding them of the legal challenges for their plans to demolish the Waikiki War Memorial in order to build a beach.
Here is the text of that letter...

National Trust for Historic Preservation
Western Office
August 26, 2009
Mr. Collins D. Lam, P.E.
Chair, Mayor's Waikiki Natatorium Task Force
City and County of Honolulu
650 South King Street
11th Floor
Honolulu, HI 96813


Re: Historic Waikiki Natatorium - Legal and Regulatory Issues for Consideration

Dear Chairman Lam:

On behalf of the National Trust for Historic Preservation we appreciate the opportunity to provide an overview of the state and federal legal framework that applies to the proposed demolition of the Waikiki War Memorial Natatorium. We recognize the difficult work the Waikiki Natatorium Task Force for has been asked to perform on this issue. However, it is essential to understand the laws that exist to protect this unique historic resource in order to make an informed recommendation to the Mayor. Most alternatives currently being considered by the Task Force would require substantial additional regulatory review.
This letter outlines several applicable federal laws and regulations that caution against permanently altering the existing conditions of the shoreline. Most pertinently, the Army Corps of Engineers must evaluate alternatives to any proposal that would harm the Natatorium, a resource listed in the National Register of Historic Places, prior to issuing the permits that would be required for demolition.

Additionally, we remain extremely concerned that the City.s continued neglect of the Natatorium poses a serious risk to the marine environment and public safety. The threat of its collapse poses a serious and immediate danger. We urge the Task Force to recommend the immediate stabilization of the pool and bleachers as the most responsible alternative to protect the public interest.

Interests of the National Trust
The National Trust for Historic Preservation was chartered by Congress in 1949 as a private nonprofit organization for the purpose of furthering the historic preservation policies of the United States and facilitating public participation in the preservation of our nation.s heritage. 16 U.S.C. § 468. With the support of our 230,000 members nationwide, the National Trust works to protect significant historic sites and to advocate historic preservation as a fundamental value in programs and policies at all levels of government. The Trust has nine regional and field offices
around the country, including a Western Office in San Francisco which is specifically responsive to preservation issues in Hawai.i. The National Trust included the Waikiki War Memorial Natatorium on its annual list of America.s 11-Most Endangered Places in 1995. We have worked in partnership with the Friends of the Natatorium and the Historic Hawai.i Foundation to advocate for the protection of this important resource.

Application of Federal Law to Natatorium Demolition Plans
The Task Force must consider the applicability of several environmental and historic preservation laws in its decision-making process. Since the Natatorium borders the Pacific Ocean, any action to demolish the structure would affect the navigable waters of the United States. The impact to navigable waters requires the oversight of the Army Corps of Engineers pursuant to the Rivers and Harbors Act. 33 U.S.C § 1. Several other recent projects in Honolulu bordering the Pacific Ocean have similarly required Army Corps review.
The proposal to demolish the Natatorium would likely require two independent permits from the Army Corps. First section 10 of the Rivers and Harbors Act mandates a permit when it is necessary to excavate from or deposit material in navigable waters. 33 U.S.C. § 403; 33 C.F.R. § 320.2(b). Second, a permit under section 404 of the Clean Water Act would be required because the project would result in the discharge of pollutants into navigable waters. 33 U.S.C. § 1251. The term "pollutant" is broadly defined to include dredged soil . . . rock, sand, [and] cellar dirt.. 3 U.S.C. 1362(6).
Footnote: 1 In Smallwood v. U.S. Army Corps of Engineers, the U.S. District Court held that a proposal toconstruct a marina was subject to Army Corps jurisdiction because the proposed .marina, [themarina.s] water-related construction, and marina-related activities. would be connected to thePacific Ocean off the coast of Honolulu. 2009 U.S. Dist. LEXIS 5508 at 5, 30. Similarly in 2008, the Army Corps exercised its authority over a proposed establishment of a stable sandy beach by the Sheraton Waikiki Hotel. 73 Fed. Reg. 67, 847-48 (Nov. 17, 2008).
a. Factors to Consider in Army Corps Permit Issuance
The Army Corps employs a .public interest. balancing test in order to determine whether to issue a permit for a project affecting navigable waters pursuant to authorizing laws such as section 10 of the Rivers and Harbors Act and section 404 of the Clean Water Act. 33 U.S.C. §§ 403, 1344. In accordance with federal regulations, the Army Corps. central question for determining the merits of such a project would be based on an evaluation of the probable impacts, including cumulative impacts, of the project on the public interest. 33 C.F.R. § 320.4(a)(1). Specifically, the Army Corps would determine the cumulative impact of the project by balancing the benefits over the foreseeable detriments of the project. Id.

The impact of the proposal to historic properties is a critical consideration that factors
into the Army Corps decision-making process. Army Corps regulations state:

Full evaluation of the general public interest requires that due consideration be given to the effect which the proposed structure or activity may have on values such as those associated with wild and scenic rivers, historic properties and National Landmarks . . . Action on permit applications should, insofar as possible, be consistent with, and avoid significant adverse effects on the values or purposes for which those classifications, controls, or policies were established.
33 C.F.R. 320.4(e). Since the demolition of the Natatorium would have a significant adverse effect on a property listed in the National Register,
the Task Force cannot assume that the Army Corps would approve a permit to
enable its destruction.
Furthermore, the Army Corps would have the responsibility to comply with several federal laws prior to taking such action.

a. National Historic Preservation Act
Because the Natatorium is listed on the National Register of Historic Places, the Army Corps would consider the project.s impact on the historic pool and fa├žade of the Natatorium, pursuant to Section 106 of the National Historic Preservation Act (.NHPA.). 16 U.S.C. § 470; 36 C.F.R. Part 800; 33 C.F.R. § 320.3(g). In particular, section 106 of the NHPA provides that the Army Corps, or any federal agency with jurisdiction over any undertaking, must .take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or
eligible for inclusion in the National Register.. See 16 U.S.C. § 470f. The Army Corps would be required to .afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.. Id.

b. National Environmental Policy Act
The Army Corps would also be required to consider the project.s merits under the National Environmental Policy Act (.NEPA.). The purpose of NEPA is to "promote efforts which will prevent or eliminate damage to the environment . . . ." 42 U.S.C. § 4321. Specifically, NEPA requires that federal agencies, including the Army Corps, consider the environmental consequences of all proposed .major Federal actions significantly affecting the quality of the human environment . . . .. Id. § 42 U.S.C. 4332(2)(C).

We believe this project would constitute a .major federal action significantly affecting the quality of the human environment,. and, therefore, that the Army Corps would be required to prepare an Environmental Impact Statement in consultation with the Environmental Protection Agency. An EIS was similarly required in the Sheraton Waikiki project. See 73 Fed. Reg. 67, 847-48 (Nov. 17, 2008). To accomplish NEPA.s mandate, the agency must: (i) analyze a reasonable range of alternatives, 40 C.F.R. § 1502.14; (ii) provide an adequate baseline of potentially affected historic properties, Id. § 1502.15; (iii) take a hard look at the direct, indirect, and cumulative impacts to historic properties, Id. § 1508.25; and, (iv) examine measures to mitigate the potential adverse impacts to historic properties, Id. § 1502.14.

c. Clean Water Act
The Army Corps would be required to evaluate the project based on regulations concerning the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act. 40 C.F.R. § 230 et seq; 13 U.S.C. § 1344, et. seq. Essentially, these regulations require the Army Corps to consult with the EPA in order to evaluate the effects and minimize the environmental impacts of discharge that dredged or fill material may have on a site. 40 C.F.R. § 230.5. In the present case, considering that the removal of the Natatorium pool and bleachers would involve considerable dredging and filling of the site, the Army Corps would have to comply with these Clean Water Act regulations. Id.

d. Endangered Species Act
The Army Corps would also be required to evaluate the project based on the requirements of section 7 of the Endangered Species Act. 16 U.S.C. § 1531, et seq. Section 7 requires consultation with the State as well as the Department of the Interior for "any action authorized, funded, or carried out by [a federal] agency . . . [that would] jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." Id. § 1536(a)(2).

In 2008, the Waikiki Sheraton Hotel proposed to establish a beach off the coast of Waikiki, and the Army Corps indicated that it would consult with the Department of the Interior regarding the project.s impacts to endangered or threatened species. 73 Fed. Reg. 67,848 (Nov. 17, 2008). Because the Natatorium is located on the same stretch of coastline as the beach proposed by the Waikiki Sheraton Hotel, it is likely that the Army Corps would be subject to similar requirements. 16 U.S.C. § 1536(a)(2).
e. Magnuson-Stevens Fishery Conservation and Management Act
Finally, the Army Corps would be required to consider the project.s effects on "fishery resources" pursuant to the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens"). 16 U.S.C. § 1801, et seq. The purpose of the Magnuson- Stevens Act is to "conserve and manage the fishery resources found off the coasts of the United States." Id. § 1801(b)(1). Specifically, the Act requires that .Each Federal agency shall consult with the Secretary [of Commerce] with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this Act.. Id. § 1855(b)(2); see Id. 1802(39).

In the present case, the Natatorium is located on the same stretch of Waikiki coastline as the project carried out by the Waikiki Sheraton Hotel in 2008. 73 Fed. Reg. 67,847- 48 (Nov. 17, 2008). Thus, because the Army Corps determined with the Waikiki Sheraton Hotels proposed beach triggered examination of the plan pursuant to the Magnuson-Stevens Act, the Army Corps would likely require consideration of the effects of the proposed demolition of the Natatorium pool on .fishery resources. as well, pursuant to Magnuson-Stevens. Id.; 16 U.S.C. § 1801, et seq.
There are very significant legal constraints on any proposal to for the City to demolish the Natatorium. Significant costs and time would be associated with any demolition proposal in order to properly evaluate the impact to historic properties and the marine environment and to comply with all applicable federal laws. The City's best option is to proceed with the already approved rehabilitation of the historic structure by, at the very minimum, stabilizing the bleachers and pool. This option would not require opening the pool as a swimming area for public use.

Finally, we recommend that to accomplish a full rehabilitation in the most cost efficient manner the City should petition the Hawaii Department of Health to amend the state public saltwater swimming pool regulations so that the rules are consistent with sound science and similar safety regulations in other jurisdictions. The current requirement that saltwater pools in Hawaii contain a mechanical pump system is excessively restrictive, potentially dangerous, and would add significant costs to rehabilitation efforts. See Haw. Dept. of Health Admin. Rules, § 11-10-3(c)-(d).

We appreciate your consideration of our concerns, and we look forward to working with you as the process moves forward in selecting the most appropriate solution for the Natatorium.

Respectfully Submitted,

Brian R. Turner
Regional Attorney

Cc: Mayor's Waikiki Natatorium Task Force
Governor Linda Lingle
Senator Daniel Inouye
Senator Daniel Kahikina Akaka
U.S. Representative Neil Abercrombie
U.S. Representative Mazie Hirono
Reid Nelson, Advisory Council on Historic Preservation
Charlene Dwin Vaughn, Advisory Council on Historic Preservation
John Eddins, Advisory Council on Historic Preservation
George S. Dunlop, Federal Preservation Officer, Army Corps of Engineers
Nancy McMahon, Hawai.i State Historic Preservation Division
Pua Aiu, Hawai.i State Historic Preservation Division
Kiersten Faulkner, Historic Hawai.i Foundation
Donna Ching, Friends of the Natatorium

Can You Name This Building?

This photo was taken of an historic building in Hawaii.
Can you name it?

Click here for the answer..

Thursday, August 27, 2009

Historic Preservation Warns City About Natatorium - Honolulu News Story - KITV Honolulu


"HONOLULU -- The city has received a warning letter from the National Trust for Historic Preservation over concerns it has about the Waikiki Natatorium"

Read More..

Thursday, August 6, 2009


PreservationNation » Blog Archive » Preserving and Interpreting Japanese Internment Camps in Hawai‘i

Preservation unit under probe

By Kaylee Noborikawa
Star Bulletin

The National Park Service is investigating the state Historic Preservation Division, which has been under harsh criticism in recent years for its handling of ancient remains and historic sites, U.S. Rep. Neil Abercrombie said yesterday.

Abercrombie asked the park service to complete the evaluation as swiftly as possible due to its importance to the state's economy and "the danger that Hawaii's cultural and historical resources are not being adequately protected."

"I'm letting them know that I'm aware of it and that I don't want it to be on the back burner," he said. "I want it to be completed as fast as possible because everything is in limbo."

The Historic Preservation Division, which is responsible for preserving historical and cultural resources, has received many complaints about historic sites and ancient remains in recent years, including a recent bulldozing of Hawea heiau. There have been management and staffing problems, and many projects have stalled due to backlogged paperwork, posing problems for developers, archaeologists and the state's economy, Abercrombie said.

"This problem extends to projects funded through the American Recovery and Reinvestment Act, which were intended to be implemented in an expedient manner in order to help the state and national economy," Abercrombie said. "It's very worrisome to me that we could see all kinds of federal dollars held up because we can't do the basic work of the state Historic Preservation Division. We simply can't have that."

Read the entire article...

Monday, August 3, 2009

After-Hours Service Launched for Reporting Cultural and Natural Resource Violations

Reporting a suspected violation of cultural or natural resource laws no longer has to wait until business hours. On August 1, the Hawaii State Department of Land and Natural Resources(DLNR) launched an automated service at the (808)643-DLNR number to handle phone reports after hours.

The “643-DLNR” hotline began in October 2006 to provide service for receiving, reviewing, and referring calls relating to natural and cultural law enforcement during business hours.

After-hours calls – on weekdays and weekends -- are now answered by a voicemail service that prompts callers to leave a voice message with information about the suspected violations. Officers on duty will check the recordings regularly and respond as available.

“We encourage after-hours callers to leave messages and to provide as much detailed information as possible to assist in our collection of data regarding the type of resource violation, where the violation occurred, and contact information so officers may follow up with them on information and enforcement response,” said Laura H. Thielen, DLNR chairperson.

As always, in life-threatening situations, callers should immediately call 911 to seek emergency assistance.

For questions, please contact DLNR Public Information Specialist at (808)587-0320.