Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 146.220, 146.270, 146.280, 146.290, 146.350,
146.990, 151.140
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the
secretary to promulgate and administrative regulations as necessary for the
preservation and enhancement of wild rivers as established in KRS 146.250 and
for control of recreational, educational, scientific, and other uses of these
areas in a manner that shall not impair them. Under the provisions of KRS 146.290, the select cutting of timber, other resource removal, or an
agricultural use may be allowed pursuant to administrative regulations
promulgated by the secretary upon the granting of a permit under the other
provisions of KRS 146.200 through 146.360. KRS 146.290 requires that any permit
granted to conduct a change of use shall contain restrictions, terms, and
conditions as appropriate to protect to the fullest extent possible the stream
area and the public trust therein within the intent of KRS 146.220. This
administrative regulation establishes minimum performance standards for
conducting a land use change in a wild river corridor as necessary to protect
the scenic beauty and environmental quality.
Section
1. Applicability. This administrative regulation applies to new
land uses, as defined by 400 KAR 4:110, within designated boundaries of a wild
river corridor that require a change of use permit from the office. Nothing
herein shall be construed as superseding any requirements of other office
programs or of other state or federal agencies.
Section 2. Buffer Zones.
(1) Other than as necessary to provide river
access sites authorized by the office, a change of land use shall be located
outside of buffer zones.
(2) If the
adjacent slope is less than forty (40) percent the minimum width of a buffer
zone bordering streams and other surface waters shall be 100 feet as measured
laterally from the bank of the stream or other surface water. If the adjacent
slope is forty (40) degrees or greater, the buffer zone width shall vary as
established in the Table in this subsection.
Slope of Land (percent)
|
Minimum Width of Buffer Zone (feet)
|
40 to 49
|
115
|
50 to 59
|
125
|
60 to 69
|
145
|
70 to 79
|
165
|
(3) The
boundaries of a buffer zone shall be flagged by the permittee with durable,
brightly-colored material prior to the commencement of a permitted change of
use.
Section 3. Extent
of Disturbance. A new land use shall occupy the minimum area necessary to
accomplish the intended use as specified in an approved land use
plan.
Section 4. Water Quality.
(1) In accordance with the nondegradation
provision for outstanding resource waters established in 400 KAR 5:029(2)(4),
background water quality of surface waters within a wild river corridor shall
be maintained or enhanced.
(2) Any
new discharge of a substance or combination of substances into a surface water
within a wild river corridor shall maintain or enhance background water quality
in the receiving stream.
(3) Water
quality data to include assessment of the presence of aquatic species and
habitat quality, shall be collected as necessary to document maintenance of
background water quality. (4) The natural flow of water in wild rivers shall be
maintained. Water withdrawals shall require a permit as established in 400 KAR 4:010 and KRS 151.140, and shall not be allowed to impair existing recreational
or fish and wildlife uses of the river, nor adversely impact endangered or
threatened species.
Section
5. Erosion Control.
(1) Best
management practices shall be implemented as necessary to control soil erosion
and sediment if there is ground surface disturbance. Sediment shall not be
allowed to accumulate in surface waters.
(2) Temporary erosion control measures shall
be immediately implemented on all disturbed areas not needed for ongoing
operation until permanent control measures can be established, and shall
minimally include use of one (1) or more of the erosion control measures
established in paragraphs (a) through (c) of this subsection.
(a) All disturbed surfaces shall be graded,
seeded, fertilized, and mulched to establish complete vegetative ground cover.
Native species of grasses and legumes shall be used if conditions
allow.
(b) Sediment ponds and
filters, such as baled vegetation, shall be used as necessary to trap sediment
within disturbed areas. Filter fences may be used in situations in which other
methods might not provide adequate control.
(c) On slopes of ten (10) percent or more,
diversion structures shall be installed uphill of disturbed areas as needed to
divert surface run-off into vegetated areas.
(3) Vehicular traffic shall be restricted to
the access roads and skid trails approved in the land use plan.
(4) Activities involving the use of heavy
equipment shall be suspended during wet soil conditions, and heavy equipment
shall be stored outside the corridor when not in use.
(5) During construction activities, storage
and disposal of unconsolidated materials shall occur only at locations approved
in the land use plan, and topsoil removed from the operation site shall be
stockpiled and stabilized for use during reclamation.
(6) Intermittent streams that are tributaries
of a wild river may be temporarily impounded or otherwise altered to effect a
permitted use. Streambed materials shall not be moved or removed from the
streambed of a permanent or intermittent stream for any purpose.
Section 6. Stream Crossings.
(1) Vehicular stream crossings shall be
prohibited where stream bank slopes exceed ten (10) percent, or where the
crossing might otherwise have an adverse impact on the stream
environment.
(2) Natural drainages
not composed substantially of rock shall be accommodated with an appropriately
sized drainage relief structure, such as a culvert or temporary bridge, at the
point of intersection with a road.
(a) Stream
crossings shall occur only at right angles where the stream channel is most
narrow and has firm, rocky banks.
(b) Relief structures for crossing a
permanent stream shall minimally consist of a closed culvert designed to handle
a ten (10) year, twenty-four (24) hour precipitation event, and shall be
embedded in clean rock fill and covered by compacted fill to a minimum depth of
one (1) foot. The bottom of culverts shall be flush with stream
substrates.
(3) As
required pursuant to KRS 151.250, a Division of Water permit to authorize
construction in a flood plain shall be obtained from the office prior to bridge
construction if the area of the watershed is one (1) square mile or
greater.
Section 7.
Access Roads.
(1) Existing roads shall be used
if possible to minimize surface disturbance.
(2) Best management practices for road
construction, incorporated by reference in the U.S. Army Corps of Engineers
Nationwide Permit for Linear Transportation, shall be employed to the greatest
extent possible during road construction and maintenance.
(3) Roads shall be routed to follow the
existing land contour as closely as possible and to avoid surface waters, flood
plains, and any areas vital to the preservation of significant features. Except
for necessary stream crossings or provision of public access to the river, no
portion of any road shall be located in a buffer zone or streambed.
(4) Roads shall not exceed a maximum grade of
ten (10) percent for distances of more than 150 feet. Portions of roads on
grades steeper than ten (10) percent shall be graded and surfaced with stable
materials such as limestone rock, crushed gravel, or other material approved in
the land use plan, and shall be sufficiently durable for the anticipated volume
of traffic and the size, weight, and speed of vehicles to be used. Acid or
toxin-forming substances shall not be used for road surfacing.
(5) The width of a road shall be appropriate
for the anticipated volume of traffic and the size, weight, and speed of
vehicles to be used and shall not exceed sixteen (16) feet for single-lane
traffic.
(6) Vegetation shall not
be cleared from an area greater than the width necessary for road and
associated ditch construction. Road shoulders shall be seeded in grass cover
immediately after construction is completed, and ditches shall be lined with
gravel.
(7) Roads constructed to
effect a permitted use shall be closed by means of a locked gate located at or
near the corridor boundary when adverse weather or other conditions cause
operation and maintenance of the permitted use to be suspended for an extended
period of time.
Section
8. Structures.
(1) Structures
permitted by the management agency shall be located either:
(a) Beyond the limit of the 100-year flood
plain as determined by the office; or
(b) No closer than 250 feet from the nearer
bank of the wild river.
(2) Structures shall be screened by
vegetation or topographic features so as not to be visible from the nearer bank
of the wild river.
(3) Any new
dock, boat ramp, or other river access facility shall be constructed so as to
minimize its intrusion into the river, if any, and shall not substantially
impede natural stream flow.
(4)
Best management practices for construction shall be used as necessary to
control erosion and prevent sedimentation of surface waters.
Section 9. Control of Hazardous
Substances.
(1) To the extent not inconsistent
with any other applicable law, any hazardous substance used for or resulting
from a new land use shall be confined to the smallest practicable area, shall
be stored so as to prevent escape as a result of rain, percolation, high water,
or other cause, and shall be properly and legally disposed of outside of the
wild river corridor.
(2) The
operator shall immediately notify the office of any accident involving fire,
personal injury, discharge, or accidental bypass of any hazardous substance
within a wild river corridor, and shall submit to the office a written report
containing details of the accident to include a map of the area impacted and a
description of the people, property, and substances involved within forty-eight
(48) hours of an accident event.
Section 10. Solid Waste Disposal. Scrap and
waste materials used to effect a new land use shall be removed and properly
disposed of, in accordance with local solid waste ordinances and 401 KAR
Chapters 47 through 49, outside of the corridor immediately after their use is
concluded.
Section 11. Visibility.
Buildings, facilities, and other structures shall be made as inconspicuous as
possible by painting or staining in muted tones or by screening with native
vegetation. Electric lines shall not be strung across a wild river unless no
other option is available, and shall be hidden to the extent
possible.
Section 12. Cutting of
Vegetation.
(1) Any tree cutting required for
a new land use, other than the permitted select cutting of timber or a new
agricultural use, shall be limited to trees that interfere with the
construction or operation of the permitted use, as approved in the land use
plan.
(2) Burning of forest
vegetation shall be prohibited unless authorized by the Division of Forestry,
or the U.S. Forest Service on federal lands, for purposes of disease control or
as part of a prescribed burn and shall conform with other applicable provisions
of law.
(3) Every effort shall be
made to avoid unnecessary removal or trampling of vegetation within a
corridor.
Section 13.
Operation and Maintenance. All operation and erosion control structures and
facilities shall be routinely inspected and maintained by the operator to
ensure proper functioning and to prevent the accumulation or accidental
discharge of hazardous substances or waste materials.
Section 14. Reclamation.
(1) The permittee shall provide written
notification to the office immediately upon the conclusion of a new land use
and shall begin implementing reclamation measures within thirty (30) days
following notifications.
(2)
Reclamation shall involve restoration of all disturbed area to its
predisturbance appearance and condition or an improved condition that shall
enhance natural and aesthetic values.
(3) Reclamation shall be completed within
ninety (90) days following conclusion of the new use unless an exception is
approved by the office, including a written request based on conditions beyond
the applicant's control before the ninety (90) day period ends.
(4) All facilities and structures installed
for the new use, including temporary erosion control and drainage structures,
shall be removed from the corridor, and the natural contours and drainage
patterns shall be restored. Culverts and other relief structures may remain if
approved by the office to protect the natural and aesthetic values of an
area.
(5) Unless otherwise approved
in the land use plan, roads constructed for the permitted use shall be
reclaimed by effectively blocking the road entrance to vehicular use, removing
water control devices, restoring the ground surface to its natural contours,
and seeding, fertilizing, and mulching the roadbed. Native species of plants
approved in the land use plan shall be used if conditions allow, and those
having wildlife value shall be preferred.
(6) Tree species that existed on the site
prior to the land use change shall be planted on all areas cleared of trees
during the land use change.
(7)
Reclamation shall be considered complete if an inspection by office personnel
determines that the affected site resembles, as closely as possible, the
condition and appearance of the land and vegetation that existed prior to the
land use change.
(8) Failure of the
operator to comply with these standards shall be cause for the denial of any
future permit to conduct a change of use on land within a wild river corridor
involving the operator.
Section
15. Additional Standards Specific to Exploration For and
Extraction Of Oil and Gas.
(1) A spill
prevention and control countermeasure (SPCC) plan shall be prepared in
accordance with 40 C.F.R. Part 112 and implemented before drilling begins. The
SPCC plan shall contain a contingency plan for reporting and controlling
accidental discharges according to 400 KAR 5:015.
(2) The area of disturbance at each well
shall not exceed sixty (60) feet by 100 feet unless otherwise approved in the
land use plan.
(3) Prior to
drilling, an area forty (40) feet in diameter centered around each well shall
be isolated by an earthen dike twelve (12) inches or more in height, and the
enclosed ground surface shall be lined with three (3) inches or more of sorbent
material.
(4) Acids and other well
drilling and cleaning fluids shall be handled in accordance with Section 9 of
this administrative regulation.
(5)
Blowout prevention equipment shall be installed on wells during
drilling.
(6) The permittee shall
provide written notification to the office of the planned dates for drilling to
provide an opportunity for office personnel to be present on-site during
drilling activities.
(7) For air
rotary or other dry methods of drilling, dust and other particulate matter
blown from the well shall be directed away from surface waters and stockpiled
in a manner that shall prevent its entry into surface waters as a result of
rain, percolation, wind, or other cause. Dust may be controlled by injecting
water into the air stream at a rate of approximately three (3) gallons per
minute. Water and other fluids used in the drilling process shall not be
discharged into surface waters.
(8)
If drilling or production is suspended for twenty-four (24) hours or longer,
all valves and blowout prevention equipment shall be closed.
(9) Storage or loadout tanks shall be
equipped with an oil brine separator and a safety valve to prevent accidental
overflow of oil, and all valves and other fluid controls shall be kept locked
or be removed when the operator is off-site to prevent accidents due to
vandalism.
(10) Produced water
shall not be discharged into surface or groundwaters within a wild river
corridor.
(11) Storage of produced
water within a wild river corridor shall be in a closed tank having a minimum
thirty (30) day storage capacity to prevent accidental discharge. Fluids shall
be safely removed from the tank when the tank becomes filled to no more than
two-thirds (2/3) capacity and be properly disposed of in accordance with 401 KAR 5:090.
(12) Pits constructed to
temporarily hold brine or other fluids produced during drilling shall be
located beyond flood plains and other areas prone to flooding, and be
constructed according to 401 KAR 5:090, Section 9(5)(a).
(13) Disposal of produced water shall be by
reinjection into a disposal well in accordance with 401 KAR 5:090, Section 11,
and require an underground injection control permit as provided for in 40 C.F.R. 146, or shall be transported outside of the corridor and reinjected into
an approved disposal well.
(14) Any
pipelines leading from pumps to storage or loadout tanks shall be fitted within
a second pipe or within an open culvert lined with nonpermeable material that
shall act as a catch basin for any accidental discharge of oil or
brine.
(15) Pipelines shall be
placed as far away as possible from streams and other surface waters, shall
follow an access road if possible, and shall not be routed across a wild
river.
(16) Facilities, roads,
collecting lines, and other structures shall be inspected daily by the operator
when wells are producing to ensure erosion control and prevent accumulations or
leaks of oil, produced water, or other hazardous substances.
(17) Spills or leaks of oil, produced water,
or drilling or cleaning fluids shall be contained by the operator immediately
upon discovery, be disposed of outside of the corridor in an approved manner
within twenty-four (24) hours of discovery, and be reported to the office in
accordance with 401 KAR 5:015 and 40 C.F.R. Part 110 .
(18) The operator shall keep sorbent
material, fire extinguishers, and other firefighting tools readily accessible
on the site to control fire or an accidental discharge of oil or produced
water.
(19) Trailers, mobile homes,
or other temporary or permanent structures used to house operation personnel
shall not be installed within a wild river corridor.
(20) Reclamation shall include the plugging
of all wells in accordance with 805 KAR 1:060, and the plugging affidavit shall
be submitted to the office.
Section
16. Additional Standards Specific to Underground Mining.
(1) Surface disturbance resulting from
underground mining shall not occur within the buffer zones of streams and other
surface waters within a wild river corridor.
(2) Drainage from any surface disturbance
resulting from underground mining shall be controlled pursuant to 405 KAR 18:060 and 405 KAR
18:070.
(3) Mine surface
entrances shall be located outside a wild river corridor if possible.
(4) Underground mining shall not be permitted
if subsidence or landslide cannot be adequately controlled. if subsidence or
surface displacement of soil, rock, or other ground material due to mining
activities causes an adverse impact to the river or other surface waters within
a wild river corridor, the mining operation shall be suspended until the
operator has corrected the damage and provided evidence that further subsidence
or landslide shall not occur.
(5) A
subsidence event shall be reported to the office within twenty-four (24) hours
of discovery, the surface impacts of subsidence shall be corrected, and the
area restored to its previous condition before mining commences. The disturbed
area shall be revegetated, using native grasses and legumes if conditions
allow, and be thoroughly mulched with straw or other suitable material until a
vegetative cover becomes established.
(6) In addition to the standards established
in this administrative regulation, any roads constructed or improved to effect
a mining use shall be in accordance with 405 KAR 18:230, and shall be
constructed and maintained using best management practices for mining haul
roads. Other transportation systems such as tramways, railroad loops, or spurs
shall not be allowed within a wild river corridor unless access would cause
less impact on the river environment than any alternative system.
(7) Underground development waste, spoil,
coal, or other hazardous substances shall be transported to proper storage and
disposal areas outside of the wild river corridor and shall otherwise be
handled according to 405 KAR 18:130 and 405 KAR 18:190. Tipples, processing, or
refuse areas shall not be located within a wild river corridor.
(8) Mine shafts shall not be routed beneath
streams and other surface waters in order to avoid subsidence and physical
damage to natural surface drainage patterns.
Section 17. Additional Standards Specific to
the Selective Cutting of Timber.
(1) Timber
cutting shall follow best management practices required pursuant to the
Kentucky Forest Conservation Act, KRS 149.342-.344, and the Kentucky
Agriculture Water Quality Act, KRS. 224.71-100 through 224.71-140, and related
practices found in the most current revision of the Kentucky Agriculture Water
Quality Plan available from the Kentucky Division of Conservation 300 Sower
Boulevard, Frankfort, Kentucky 40601.
(2) A professional forester shall survey and
mark all trees to be cut. A minimum residual basal area of not less than sixty
(60) square feet per acre shall be left standing and evenly distributed over
the harvested area.
(3) The
boundaries of the area to be cut shall be clearly marked using paint.
(4) Prior to cutting, all active den trees
and at least three (3) mast-producing trees per acre consisting of trees in the
largest size class in the stand, shall be marked and left standing.
(5) Tree cutting shall not be repeated in the
permitted area at intervals of less than twenty (20) years from the date that
reclamation is completed as established in Section 14(7) of this administrative
regulation, unless the landowner has submitted a timber management plan as part
of the land use plan, approved by a professional forester, which recommends a
shorter interval.
(6) The selective
cutting of trees shall be prohibited within buffer zones except to remove
diseased or insect-infested trees or those becoming uprooted due to natural
causes.
(7) Construction of roads
and skid trails shall occur outside of buffer zones, unless less impact would
result from using an existing road in a buffer zone and be routed to follow the
contours of the land.
(8) Trees
used for fastening or attaching cables, guys, or other equipment shall be
adequately protected from possibly injury.
(9) In hilly terrain, logs shall be skidded
uphill if possible, on trails designed and maintained for this purpose using
best management practices, and shall not be skidded through surface
waters.
(10) The amount of surface
disturbance required for construction of roads, skid trails, and log landings
shall be kept to the minimum required for these purposes, and the area of a
landing shall not exceed 6,000 feet unless and exception is approved in the
land use plan.
(11) Log landings
shall be located so as to minimize erosion and if possible be located on
well-drained sites on slopes of less than ten (10) percent. If necessary, a
landing shall be protected from overland flow of water by construction of a
diversion ditch on the uphill side to divert water into well-vegetated
areas.
(12) Timber shall be cut as
close to the ground as is reasonably practicable, with the height of the stumps
not to exceed twelve (12) inches above ground on the uphill side of the
tree.
(13) Trees shall be cut so as
to fall away from streams and other surface waters, rock houses, historic
structures, and other sensitive areas identified by the office.
(14) Tree tops and other nonmarketable timber
slash shall be lopped to within two (2) feet of the ground surface, or chipped
and spread on disturbed areas to control erosion. Slash shall be randomly
placed within a corridor.
(15)
Pesticides and herbicides shall be used in accordance with the land use plan
submitted as part of the permit application incorporated by reference in 400 KAR 4:130.
(16) Facilities for
processing logs shall be located outside wild river corridor
boundaries.
(17) Logging operations
shall cease during wet soil conditions.
(18) At the conclusion of the land use
change, log landings, skid trails, and haul roads shall be reclaimed according
to Section 14 of this administrative regulation.
(19) A permit to conduct select cutting of
timber shall not be extended more than 180 days beyond the original permit
expiration date.
Section
18. Additional Standards Specific to Agriculture.
(1) A new agricultural use within a wild
river corridor shall follow the Kentucky Agriculture Water Quality Act, KRS.
224.71-100 through 224.71-140, and related practices found in the most current
revision of the Kentucky Agriculture Water Quality Plan available from the
Kentucky Division of Conservation 300 Sower Boulevard, Frankfort, Kentucky
40601.
(2) The removal of trees to
effect a new agricultural use shall be subject to all applicable provisions of
Section 17 of this administrative regulation.
(3) Where little or no vegetative ground
cover exists between the proposed agricultural use and a stream or wetland,
native trees and ground cover shall be planted along the banks of the surface
water to create buffer zones prior to the commencement of the agricultural use.
Plant species shall be recommended by the office.
(4) Severely eroded, sediment-producing areas
shall be properly stabilized using best management practices for critical areas
prior to the commencement of a new agricultural use in an area.
(5) Conservation tillage methods shall be
employed to the extent practicable on lands having slopes of ten (10) degrees
or greater.
(6) A cover crop shall
be planted in cultivated fields during winter and other periods when the
cultivated crop does not provide adequate ground cover.
(7) Livestock shall be excluded from buffer
zones by fencing or other methods.
(8) Watering areas for livestock shall be
located outside of buffer zones.
(9) The number of livestock per area of
pasture shall be estimated in the land use plan and shall be maintained at or
below the level necessary to sustain complete ground cover.
(10) Animal wastes shall be stored and
disposed of in a manner that will prevent their introduction into streams.
Spreading of waste over fields as a disposal method shall be avoided during
periods of heavy rainfall or frozen soil conditions.
(11) Any pond constructed to hold animal
waste shall be located as far away as possible from streams and other surface
waters, and be designed to hold the run-off from a twenty-five (25) year,
twenty-four (24) hour storm event plus six (6) months of
precipitation.
(12) A perennial
cover crop shall be planted between trees in orchards and nurseries immediately
after the nursery stock is planted.
(13) The use of pesticides and herbicides
shall be restricted to those approved in the land use plan, and the use of a
persistent, toxic substance shall not be approved if an equally effective, less
toxic and less persistent product is available.
(14) Aerial spraying of chemicals shall not
be allowed within a wild river corridor.
(15) The office may attach additional
standards to a permit authorizing an agricultural use on highly erodible
lands.
Section 19.
Additional Standards for Recreation Facilities Development.
(1) Development of commercial or private
recreational facilities within a wild river corridor shall be consistent with
wild river management plans, and buildings and other structures shall be
located outside of buffer zones if possible.
(2) Recreation facilities shall be primitive
in design and appearance and constructed of natural or natural-appearing
materials that blend with the surroundings.
(3) Recreation facilities shall be designed
so as to require minimal ground disturbance and removal of
vegetation.
STATUTORY AUTHORITY: KRS 146.270, 151.125, 224.01-110,
224.10-100