401 KAR 4:140. Wild rivers change of use
RELATES TO: KRS 146.220, 146.270,
146.280, 146.290, 146.350, 146.990, 151.140
STATUTORY AUTHORITY: KRS 146.270,
151.125, 224.01-110, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS
146.270 authorizes the secretary to adopt rules and administrative regulations
as necessary for the preservation and enhancement of wild rivers as set forth
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. In such
administration primary emphasis shall be given to protecting aesthetic, scenic,
historic, archaeologic, and scientific features of the area. 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 to 146.360. KRS 146.290 requires that any permit
granted to conduct a change of use shall contain such restrictions, terms and
conditions as are 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 sets forth 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 in 401 KAR
4:110, within designated boundaries of a wild river corridor which require a
change of use permit from the cabinet. Nothing herein shall be construed as
superseding any requirements of other cabinet programs or of other state or
Section 2. Buffer Zones. (1) Other than
as necessary to provide river access sites authorized by the cabinet, a change
of land use shall be located outside of buffer zones.
(2) Where 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. Where the adjacent slope is forty (40)
degrees or greater, the buffer zone width shall vary as follows:
Slope of Land (percent)
Minimum Width of
Buffer Zone (feet)
40 to 49
50 to 59
60 to 69
70 to 79
(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
contained in 401 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 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
provided in 401 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 wherever 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 following:
(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 wherever conditions
(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 where other methods may not provide
(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 which 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 which are 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 under KRS 151.250, a
permit to authorize construction in a flood plain must be obtained from the
cabinet 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 whenever possible to minimize surface disturbance.
(2) Best management practices for road
construction, adopted by reference in 401 KAR 5:200, 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 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 unless special exemption is made on the application.
(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 whenever adverse weather or other conditions cause operation
and maintenance of the permitted use to be suspended for an extended period of
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 division; 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 cabinet of any accident involving fire, personal injury, discharge or
accidental bypass of any hazardous substance within a wild river corridor, and
shall submit a written report to the cabinet 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 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 and, 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 which
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
Section 14. Reclamation. (1) The permittee
shall provide written notification to the cabinet immediately upon the
conclusion of a new land use and shall begin implementing reclamation measures
within thirty (30) days following such notifications.
(2) Reclamation shall involve restoration
of all disturbed area to its predisturbance appearance and condition or an
improved condition that will 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 cabinet 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 cabinet 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 wherever conditions allow, and those having
wildlife value will be preferred.
(6) Tree species which 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 when an inspection by division 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
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 CFR
Part 112 and implemented before drilling begins. The SPCC plan shall contain a
contingency plan for reporting and controlling accidental discharges according
to 401 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
(5) Blowout prevention equipment shall be
installed on wells during drilling.
(6) The permittee shall provide written
notification to the division of the planned dates for drilling to provide an
opportunity for division personnel to be present on-site during drilling
(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 will 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) Whenever 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) No produced water shall 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.
(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
CFR 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 wherever 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 cabinet in accordance with 401 KAR 5:015 and 40 CFR 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 oil and gas regulations, and the
plugging affidavit shall be submitted to the division.
Section 16. Additional Standards Specific
to Underground Mining. (1) No surface disturbance resulting from underground
mining shall 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 following the guidelines
contained in "Best Management Practices for Surface Coal Mining,"
published in 1984 and adopted by reference herein. Copies of this document can
be obtained from the Division of Water, 200 Fair Oaks Lane, Frankfort,
(3) Mine surface entrances shall be
located outside a wild river corridor wherever possible.
(4) Underground mining shall not be
permitted where 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 such time as 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 cabinet 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 wherever conditions allow, and be thoroughly
mulched with straw or other suitable material until a vegetative cover becomes
(6) In addition to the standards set
forth 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 such 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. No tipples, processing
or refuse areas shall 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 to the
fullest extent possible the guidelines contained in "Forest Practices
Guidelines for Water Quality Management," published July 1980 and adopted
by reference herein. Copies of this document can be obtained from the Division
of Water, 200 Fair Oaks Lane, Frankfort, Kentucky.
(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 specified 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
(8) Trees used for fastening or attaching
cables, guys or other equipment shall be adequately protected from possibly
(9) In hilly terrain, logs shall be
skidded uphill where possible, on trails designed and maintained for this
purpose using best management practices, and shall not be skidded through
(10) The amount of surface disturbance
required for construction of roads, skid trails and log landings shall be kept
to the minimum required for such 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 wherever possible be located on well-drained sites on slopes
of less than ten (10) percent. Where 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 division.
(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
(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
Section 18. Additional Standards Specific
to Agriculture. (1) A new agricultural use within a wild river corridor shall
follow to the fullest extent possible the guidelines contained in "Best
Management Practices for Agriculture," published July 1985 and adopted by
reference herein. Copies of this document can be obtained from the Division of
Water, 200 Fair Oaks Lane, Frankfort, Kentucky.
(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 will be recommended by the division.
(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
(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 properly
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 cabinet 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 wherever 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.
(15 Ky.R. 706; Am. 1000; eff. 10-26-88; TAm eff. 11-25-2008.)