Mahaulepu: A Sense of Place
Mahaulepu, Kauai is one of the island’s natural and cultural crown jewels – the last accessible, undeveloped ahupuaa on the Southside. From Mount Ha`upu to the crashing waves of the ocean, it is a cultural landscape within which the natural and human history of millions of years is evident. Mahaulepu is a living museum with scenic beauty, unique geology, endangered and threatened species, native Hawaiian sites and stories, agriculture and conservation lands. It is enjoyed by visitors and residents alike for hiking, fishing, limu gathering, diving, water sports. The area is a vitally needed recreational retreat, a source of renewal and reflection, and an iconic representation of the island’s rural, untouched character.
Mahaulepu’s coastal zone is perceived and enjoyed as open space and a passive recreational refuge, thanks to the landowner, Grove Farm Company, Inc. Grove Farm’s commitment to the land includes providing security to open and close inner Mahaulepu at night, paying for property taxes and liability insurance, supporting trash collection, continuing agriculture through multiple leases; allowing the important work at Makauwahi Cave Reserve and maintaining the cane haul roads. These activities comprise a costly, on-going commitment.
While these efforts are appreciated by the community, there remains an absence of any permanent protection for Mahaulepu. This leaves the area vulnerable to resort development or other incompatible land uses. The desire to permanently set aside Mahaulepu from development has been articulated for over forty years, including in the 2000 General Plan. For this reason the County should focus on securing appropriate access and protection mechanisms while limiting intensive uses of the area.
Why is Mahaulepu important?
Mahaulepu is many things to many people. Most of us know and appreciate it first as a recreational place amidst natural beauty – a rural getaway, a place of refuge, a place without commercial activities and intensity. It holds a deep connection for many local families. Mahaulepu is sacred and legendary to Native Hawaiians, many of whom are connected to this area by ancestral ties, burials in the dunes and valley, and by continuing cultural uses including fishing and gathering. Its marine resources are considered healthy and known to be important. Continuation of fishing in the area and protection of coastal ecosystems are goals of many residents and stakeholder groups.
Mahaulepu is also important for science as a research site. At Mahaulepu you can witness the geologic history from Kauai’s oldest lavas to limestone headlands formed over the last 350,000 years of ocean rise and fall to dunes found back as far back as a mile from the beach and still forming.
The dunes are sources of beach replenishment and defense against rise sea levels. Special native plants and animals can be observed and continue to be protected at Maha`ulepu. There is critical habitat from the very small endemic insects – the Blind Cave Spider and amphipod – to the monk seals and, of course, the humpback whales. Native plants include the secretive nama, more profuse low lying native vines as well as some highly endangered plants on Mt. Ha`upu.
At the 17-acre Makauwahi Cave Reserve, an paleoecological and archaeological record going back 10,000 years has been established, and native plants which once flourished in this area have been replanted both in their natural settings and as row crops. Bones of more than 45 species of birds have been discovered. Most of these are extinct or rare and several are new species. Makauwahi is a model for native plant restoration which is a long term goal for Mahaulepu.
In addition to what exists at Mahaulepu, there are opportunities to restore some of the watershed’s natural ecological systems. There are the extensive wetlands, which filter sediment and pollutants, incubate baby fish and provide water bird habitat. What the Department of Health calls a “ditch” is two consolidated streams. Reclamation of the Old Quarry could be a multi-purpose project to restore cultural sites, utilize the man-created ponds for native bird habitat, to plant native vegetation for stabilization and establish safe walking paths.
Mahaulepu is important as a collection of natural resources, history, stories – with much more to discover – daily experiences and beauty. It is all of this together that make it a heritage place and unique conservation and resource management opportunity.
Threats to Mahaulepu:
Population growth and ever encroaching urbanization are the largest threats to preservation of Mahaulepu. While it can feel remote, it adjoins suburban and resort development along the island’s south and east shores. An aerial look at Koloa and the Poipu coastline from the Spouting Horn to the Grand Hyatt shows the resort and residential development along the coast. In the above graphic, the red demarks multi-family condo, timeshare or hotel projects; the green marks the public beach parks. Of course, private residences also line the coastlines.
While Mahaulepu may not be as vulnerable to the large resort residential development proposed in 1970s, the golf course, marina and two hotels suggested in the 1990s, or even the 250 room hotel described in 2003, allowable density in the agricultural district make high-end residential development possible. Lack of active management in high-use areas is also a threat. Without active management, shoreline cultural and natural assets run the risk of damage from overuse before they have even been well studied.
Lack of management for local wildlife also threatens native habitat in the area. Habitat degradation and destruction by feral pigs and goats, has since grown unchecked. Animal waste generated by these populations could be a contributing factor to the high pollution levels of the watershed.
Preservation which is equitable to the landowner and which involves community in management can take many forms. Here is a primer of preservation methods which are widely employed in saving places throughout Hawaii and the world.
Mahaulepu is in need of a preservation model or models that meet landowner needs, protect fragile and vulnerable landforms, plants and animals and allow permanent public enjoyment. The following is a list of methods used to conserve “open space” that could be included in a model for this area. The term open space encompasses lands of diverse public importance, from agricultural land to natural habitats, to scenic areas, to cultural sites or lands that allow cultural practice to continue, to places for both active and passive recreation.
The methods discussed below are:
- Conservation Easements
- Protective Land Use Controls
Transfer of Development Rights
- The National Park creation process
General Conservation Principles
Because every land parcel is completely unique, there is no template for land conservation. Every situation requires thoughtful, expert and creative negotiation.
Conservation initiatives for Mahaulepu must attain multiple goals:
- fair compensation for any lands or uses which landowners give up to public purposes, while satisfying the landowners’ desire to maintain management control;
- permanent protection of special and vulnerable landforms, plants, animals and cultural places;
- establishment of permanent and managed public access and enjoyment, while assuring native Hawaiians and others that any federal park lands will return to the nation of Hawai’i, if it is established; and
- creating collaborative partnerships for funding and stewardship
Almost all conservation projects, including National Park Service designations, require willing or cooperative landowners. All conservation approaches entail tradeoffs. Generally, the larger the area and the more public use allowed, the more expensive the project.
Large valuable places usually require a combination of land conservation methods, multiple partners and multiple funding sources. Management is an added ongoing expense, even when a stewardship or management endowment is established. There are collaborative opportunities for all elements of the community: the public, the landowner, government, land trusts, and private donors.
The “Bundle of Rights”
Some important conservation methods arise from the legal principle that property owners possess a “bundle of rights” among them the rights the right to possession, control, use, exclusion, develop and disposition. Conservation easements and transfer of development rights are methods premised on the landowner’s giving up some of their bundle of rights in exchange for monetary compensation.
A conservation easement is a legally crafted agreement between a donor and an accepting organization (private or government) in which specific land uses are sacrificed in favor of the public. For instance, landowners frequently give up the right to build units on their parcel(s), to subdivide and to do commercial activities.
However, other uses may be retained such as the right to continue agricultural uses, to use existing buildings, to hunt, hike etc. Landowners can donate or sell easement rights to government or to a land trust or qualified nonprofit. Easements are valued by calculating the difference between fair market value before or after the donation or purchase of the easement.
The value of the easement is established through an appraisal. The donor receives a federal income tax deduction equivalent to the value of the easements and deductible (over 15 years – changing).
A conservation easement is perpetual. All future owners must abide by the easement. And its conditions must be managed and monitored. The easement is held by a qualified organization, such as government or non profit, that is responsible for monitoring easement agreement.
➔ Hawaii Example: Turtle Bay Lands, O`ahu
House Bill 2434 (Act 81) established a conservation easement preserving 666 (of 852). acres of land owned by Turtle Bay Resort (TBR). The measure will allow for the preservation of nearly 79 percent of the open space land owned by the resort. The total value of this agreement is $48.5 million; $40 million will be provided by theState, $5 million will be provided by the City and County of Honolulu, and $3.5 million will be provided by The Trust for Public Land. Other partners include the North Shore Community Land Trust. Two hotels and 735 residential units are still allowed. Turtle Bay well illustrates how expensive conservation is once land is given resort or residential zoning.
Protective Land Use Controls
As some land use district and zoning confer more density rights, downzoning from higher to lower density designation is a tool. Most commonly it would involve redistricting land from Agriculture or Urban to the State Conservation District. This action would require vote of the State Board of Land and Natural Resources and County support.
Placing land in the conservation zone definitely reduces development potential. It also increases the permitting entailed for resource management. One way to manage specifically for known resources and purposes is creation of a special conservation subzone.
➔ Hawaii Examples: Limahuli Gardens and Allerton Gardens and Lawai Kai are special subzones initiated by the National Tropical Botanical Gardens (NTBG). In both cases land is permanently dedicated to conservation by the landowner -NTBG- and a unique subzone requiring thorough resources assessments, clear purposes and detailed management plans was approved by the State Board of Land and Natural. This eliminates going to the Board of Land and Natural Resources for approvals for invasives removal, restoration activities, etc. Public use is limited in both of these places with emphasis on resource protection, restoration and education.
In 1992, the State proposed expanding the conservation zone at Maha`ulepu to include the coastal ag lands and craters. This was done in conjunction with a state land banking program which was not fully enacted.
Transfer of Development Rights.
TDR is a regulatory strategy, a program, that can accomplish the smart growth purposes of preventing growth in sensitive places and encouraging growth in suitable and desired locations. The County would establish sending zones (areas of limited development – zone A) and receiving zones (areas where development is desired – Zone B)
Landowners in Zone B could be required to buy development rights from landowners in Zone A. Or landowners in Zone A could use Zone A density plus the underlying density in Zone B in a receiving area that they own. Or a development rights bank could be established to which Zone A landowners could sell credits and Zone B landowners could purchase them.
This is a complicated but sound tool that can fairly limit development. It does not necessarily create parks or preserves or ensure public access.
Are usually negotiated when a developer has a land use proposal before a government entity or when development has been contested for long years.
➔ Hawaii Example: Kohanaiki, Kona, Hawaii
“Under the agreement, the developer will deed 108 acres of land along the coast (part of which will actually be under the new golf course) to the county and construct a park with restrooms, showers, camping for up to 80 people a night, and a new access road system to replace the rugged jeep trail that has supplied public access for decades. In exchange, the developer gets to build a much-scaled-down community called Kohanaiki Shores, with and a golf course, club house, swimming pool-spa and a maximum of 500 homes on one-acre lots. “ Hawaii News , April 2013.
A landowner and government (County, State, Federal) entity“swap” a parcel desired for conservation for one of comparable development value.
A large landholder limits density, places large amounts of land in preservation status – frequently using conservation easements. May or may not allow public access or use.
➔ Hawaii Example: The Santa Lucia Preserve, in Carmel California is an example of private landowner conservation project, a gated community of 20,000 acres with 300 lots with limited building envelopes and design guidelines and the remainder of land is in permanent conservation easements, managed by a non-profit with limited public education and tours.
A management agreement enables a land trust or open space agency to help plan for the care of the natural and scenic features of your land. Management agreements are written for a defined term, usually a short term. They are renewable and they usually provide for revocation by either party with appropriate notice. They are often used to protect plant and wildlife habitats or to keep scenic fields open. The land trust often provides technical advice and assistance (sometimes for a fee), while the landowner carries out the plan. In most cases, only nominal lease payments are involved.
Can take many forms and result in different kinds of preserves with different kinds of public uses.
Donating land to a private, nonprofit conservation organization or to a public conservation body is the most straightforward method of permanent land conservation. “Donating” land for conservation means conveying the land to a conservation organization or agency for no compensation or with only nominal compensation (such as $1 or $100). It transfers ownership and management responsibilities to the organization or agency, thereby ending the burden of property taxes. Donation of the land provides maximum income tax and estate tax benefits and
avoids the capital gains tax.
➔ HI Example: Kahili Beach is a 4.5 acre property was donated to public use in return for tax benefits. In this instance the landowner did not want to deal with constant management and could see that a home there was not appropriate. Owned by the Hawaiian Islands Land Trust, regular stewardship/cleanups are done by Kilauea Neighborhood Association.
Sale at Fair Market Value
While selling land at its fair market value to a conservation organization or agency may be ideal from the landowner’s point of view, funds are rarely available for such a purchase.
A bargain sale is a sale to a charitable organization or governmental agency at less than fair market value. It increases the chance that a conservation organization or agency can obtain the funds for the transaction.
The difference between the appraised market value and the sale price to a qualified nonprofit or governmental agency is considered a tax-deductible charitable contribution. This difference is negotiated between the landowner and the purchasing organization.
In an installment sale, the seller accepts a series of payments over time rather than one lump sum. An installment sale may benefit a landowner by spreading income and taxable gain over several years, subject to special tax limitations.
Right of First Refusal
A public agency or a non profit acquires from the landowner the right to have the first opportunity to purchase a property if and when the current owner decides to sell. Challenging to value and best utilized when public entity has amassed funding needed for purchase.
➔ Hawaii Example Purchase: Waihee Dunes, Maui
Waihee Dunes is a 249 acre property that was slated for development. It cost $4.6 plus million to acquire from a Japanese developer. The Maui Coastal Land Trust (now the Hawaiian Islands Land Trust) brokered this sale. Money came from the DLNR, Maui County, Ducks Unlimited, US Fish and Wildlife, and the Endangered Species Section 6 Recovery Lands Acquisiiton grant ( a NOAA program). The area includes cultural sites and wetlands. Hawaiian Islands Land Trust owns and manages Waihee for restoration, education, cultural uses and recreation.
➔ Hawaii Example Purchase Pupukea, Oahu
After years of community resistance to residential development by a Japanese company, 1,129 acres at Pupukea on the North Shore of Oahu were saved in 2009. Brokered by the Trust for Public Land, 25 acres next to Sunset Elementary School were transferred to the State. 1,104 were transferred to the State Parks division for a Park Reserve. The State and the North Shore Community Land Trust will to work on management plan. Partners on $7.95 million dollar deal were the community, TPL, US Army, the Governor, Department of Land and Natural Resources, the Legislature, the
Mayor and City Council of Honolulu, the federal government. ( Some funds came from the Army Compatible Use Buffer Program, NOAA Coastal and Estuarine Land Conservation program, and the State land conservation fund.)
A similar effort occurred for preservation of Waimea Park and Valley on Oahu in 2005.
The Federal Parks Designation Process
The Federal Parks Designation Process is a four step process. Any member of Congress can ask the Department of Interior to conduct a reconnaissance survey to establish whether an area meets three criteria: the resources merit conservation (significance) and no other national park displays these (suitability); there appear to be ways that the area could be acquired and managed (feasibility). Congressman Inouye requested the reconnaissance survey of Maha`ulepu and surroundings.
For the second, deeper level of study, Congress must enact a bill to fund a Special Resources Study. In addition to looking more closely at the resources of an area and conducting public input meetings, a special resources study must:
- consider other alternatives for preservation, protection and interpretation of the sites by Federal, State or local governmental entities or private nonprofit organizations
- consult with interested Federal , State, or local governmental entities, private and nonprofit organizations, or any other interested individuals and identify cost estimates for any Federal acquisition, development, interpretation, operation and maintenance associated with the alternatives
If federal conservation is recommended, the Parks Service, with community input, determines what kind of “park” suits the area and makes a recommendation to Congress.
There are numerous types of parks. Parks differ primary conservation purpose, in size, level of management and facilities, allowed uses, and fees. The Big Island, for instance, has the vast Hawaii Volcanoes National Park (330,000 acres), two National Historic Parks (Puuhonua O Honaunau (City of Refuge) and Kaloko Honokohau, a national historical site, Puukohola Heiau, and a National Historic trail – the Ala Kahakai.
Other kinds of national parks include national heritage and recreation areas and seashores Heritage areas generally are generated by communities desiring to economic development and community pride by highlighting their natural and historic resources and the stories they collectively tell. No federal management is involved and area may receive some Congressional appropriations. Recreation areas (usually in urban areas) encompass large lakes or reservoirs and emphasis boating. National seashores of which there are 10 – mostly on the Atlantic coast – with best known on the pacific coast being Point Reyes national Seashore. National seashores usually allow hunting, fishing and private property ownership as long as the use of the property does not change.
National monuments are a federal preservation designation that the President can make without Congressional approval.
Federal: The Land and Water Conservation Fund (LWCF) was established by Congress in 1965. The Act designated that a portion of receipts from offshore oil and gas leases be placed into a fund annually for state and local conservation, as well as for the protection of our national treasures (parks, forest, and wildlife areas).
The Agricultural Conservation Easement Program (ACEP) provides financial and technical assistance to help conserve agricultural lands and wetlands and their related benefits. Under the Agricultural Land Easements component, NRCS helps Indian tribes, state and local governments and non-governmental organizations protect working agricultural lands and limit non-agricultural uses of the land. Under the Wetlands Reserve Easements component, NRCS helps to restore, protect and enhance enrolled wetlands.
The U.S. Fish and Wildlife Service’s (Service) Division of Bird Habitat Conservation (Division) manages matching grants program that supports public-private partnerships carrying out projects in the United States, Canada, Latin America, and the Caribbean that promote the long-term conservation of Neotropical migratory birds and their habitats.
The NOAA Coastal and Estuarine Land Conservation Program enables states to permanently protect coastal and estuarine lands by providing matching funds for community-based projects to acquire property from willing sellers either through fee simple purchase or through conservation easements.
The Forest Legacy Conservation Program (FLP), is a Federal program in partnership with States, supports State efforts to protect environmentally sensitive forest lands. To maximize the public benefits it achieves, the program focuses on the acquisition of partial interests in privately owned forest lands. FLP helps the States develop and carry out their forest conservation plans. It encourages acquisition of conservation easements, legally binding agreements transferring a negotiated set of property rights from one party to another, without removing the property from private ownership
State: The Legacy Lands Fund (requires at least 25% of acquisition to be provided by other funding sources).
County: The Public Access, Natural Resources and Open Space Preservation Fund.