401 KAR 4:140. Wild rivers change of use permit standards

Link to law: http://www.lrc.ky.gov/kar/401/004/140.htm
Published: 2015

      401 KAR 4:140. Wild rivers change of use

permit standards.

 

      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

federal agencies.

 

      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





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

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

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 where other methods may 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 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

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 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

waste materials.

 

      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

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 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

administrative regulation.

      (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

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 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,

Kentucky.

      (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

established.

      (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

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 where 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 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

application.

      (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 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

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 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.)
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