400 KAR 4:125 - Wild rivers administration
RELATES TO: KRS 146.220, 146.270, 146.290, 146.310, 146.350, 224.01-110, 224.10-240, 224.10-440, 224.10-470
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.270 authorizes the
Section 1.
General Policy.
(1) Wild rivers shall be
managed to preserve their free-flowing condition and to protect the outstanding
and unique aesthetic, scenic, recreational, fish and wildlife, botanical,
historical, archaeological, and other natural and cultural features that
qualified the streams for designation as wild rivers.
(2) Additional management objectives shall be
to afford opportunities to enjoy natural streams and to preserve for future
generations the beauty of certain areas untrammeled by man. The office shall
not encourage public use of areas where it has been determined that the
carrying capacity for one (1) or more uses has been reached or
exceeded.
Section 2.
Management Plans.
(1) The management of a
given wild river corridor shall be according to a management plan developed by
the office.
(2) The office shall
consult with landowners in the affected wild river corridor , citizen groups,
industries, and appropriate local, state, and federal agencies in the
preparation of each management plan .
(3) Public participation in the development
of a management plan shall be provisioned by at last one (1) public hearing on
the draft management plan followed by a thirty (30) day comment period prior to
finalizing the plan.
(4)
(a) The hearing or hearings, shall be
conducted in one (1) of the counties through which the designated portion of
the river flows.
(b) Notice of
hearing shall be given in accordance with the provisions of KRS Chapter 424.
The notice shall:
1. State the time, place,
and purpose of the hearing;
2.
State the name and address of the person from whom a copy of the proposed
management plan may be attained;
3.
Be published not less than seven (7) nor more than twenty-one (21) days prior
to the hearing;
4. Be published in
the county or counties, through which the designated portion of the river
flows, and in at least one (1) major newspaper; and
5. Include the address to which written
comments on the draft management plan may be submitted, and the date by which
those written comments shall be submitted.
(c) The hearing shall be conducted by a
designated representative of the office who shall control the order of
presentation.
(d) Any interested
person may appear at the hearing and make an oral or written presentation
concerning the draft management plan . All oral presentations shall be
recorded.
(e) All written and oral
comments shall be considered in the development of the management
plan .
(5) Responsibility
for the administration and management of a wild river shall be clearly
delineated in the management plan for that river, and any management agreements
between the office and local, state, or federal agencies having overlapping
jurisdiction over lands or waters within the wild river corridor shall be
incorporated into the plan.
Section
3. Existing or Conforming Land Uses.
(1) Under the provisions of KRS 146.290, land
uses that are lawfully existing at the time the boundaries of a wild river are
designated may continue even though the use does not conform to the purpose and
intent of the Kentucky Wild Rivers Act or the management plan for a given wild
river .
(2) Other than existing
uses, land uses within wild river corridors that conform to the purposes and
intent of the Kentucky Wild Rivers Act and the duly adopted management plan for
each wild river shall not require a change of use permit .
(3) Conforming uses shall include wilderness
type recreation such as nonmechanized boating, hiking, hunting, fishing,
camping, and sightseeing, as well as scientific research, environmental
education, and related activities that preserve the primitive character and
natural and cultural resources of the area.
(4) Other land uses shall qualify as
conforming uses if they do not involve the clearing of more than one-half (1/2)
acre of timber, nor constitute a significant visual intrusion within 100 feet
of the river. Conforming uses may include:
(a)
The routine maintenance, repair, renovation or replacement of existing roads,
buildings, or other structures or improvements to an existing use ;
(b) The selective cutting of firewood or
individual trees by a landowner for personal or family use;
(c) Landscaping and gardening, including
flower, fruit, and vegetable production;
(d) Fencing;
(e) The removal of noxious weeds from an area
using direct application, but not aerial spraying, of herbicides that are
short-term and nontoxic to fish and wildlife and that shall not leach into
surface waters or groundwater; and
(f) The clearing of diseased or insect-
infested trees from an area greater than one-half (1/2) acre upon written
authorization from the office based on the recommendation of a professional
forester .
Section
4. Permitted Land Uses.
(1) Land
use changes authorized by the office through a change of use permit as required
by KRS 146.290, shall comply with all applicable standards established in 400 KAR 4:140.
(2) Land use changes
that require a change of use permit shall include:
(a) A resource removal , by methods other than
surface mining;
(b) The selective
cutting of timber as defined by 400 KAR 1:110; and
(c) A new agricultural use that requires
clearing of timber from an area greater than one-half (1/2) acre or more in
extent.
Section
5. Prohibited Land Uses. Land uses established in subsections (1)
through (3) of this section shall be prohibited.
(1) Pursuant to KRS 146.290, surface mining,
timber harvest by methods other than selective cutting, and in-stream
disturbances shall be prohibited within a wild river corridor .
(2) Prohibited in-stream disturbances shall
include dam construction, dredging, spoil or fill deposition, channel
diversion, channelization, and mining of streambed materials.
(3) The construction of roads, buildings, or
other structures to effect any use other than an existing or permitted land
use, as established in this section or Section 4 of this administrative
regulation, shall be prohibited.
Section 6. Public Use.
(1) Public use of wild river corridors shall
be limited to the public waters and public lands or interests in lands acquired
through lease, easement, or other agreement entered into by the landowner .
Public use of private property shall require permission from the landowner .
Trespassing shall be subject to penalty as established in KRS 146.990. This
section applies to the public use of state-owned lands and public waters within
wild river corridors.
(2) The
office shall make every effort to inform the public that the wild river
designation does not authorize public use of privately owned lands and shall
prepare maps delineating the boundaries of public lands within wild river
corridors to reduce unintentional trespassing.
(3) In accordance with KRS 146.290,
transportation shall be by foot, canoe, kayak, boat, with or without electric
motor, or other nonmechanized means except on existing public roads, as
required for administrative and resource protection purposes, or as necessary
to effect an existing or permitted land use.
(4) The office may condition or deny public
access to a wild river if use is causing substantial adverse impact on the
scenic, aesthetic, natural, cultural, scientific, or recreational resources, if
private property is being damaged, or if user safety is being
jeopardized.
(5) Cultural
artifacts, relics, fossils, and souvenirs shall not be removed from their site
of discovery in a wild river corridor . Deliberate damage to plants, animals,
artifacts, or other special features shall be prohibited. A written request
shall be submitted to and approved by the office, in accordance with the
Research Permit Application, KNP02, incorporated by reference in 400 KAR 2:090,
prior to the collection of any natural or cultural materials.
(6) Burying, dumping, or depositing litter,
soil, garbage, waste, scrap, or other unsightly or offensive materials other
than in receptacles provided for this purpose shall be prohibited.
(7) Horseback riding shall be allowed only on
trails specifically designated for this use.
(8) Overnight camping and campfires shall be
prohibited within thirty (30) feet of a wild river . An open fire shall not be
left unattended, and all fires shall be completely extinguished after use. Live
vegetation shall not be cut for firewood.
(9) Camping within a state park shall be in
accordance with 304 KAR 1:040.
(10)
Hunting, fishing, and trapping shall be subject to state and federal fish and
wildlife laws and regulations, and shall comply with the conditions established
in paragraphs (a) and (b) of this subsection.
(a) The construction of permanent shelters,
lean-tos, or other buildings shall be prohibited. Temporary blinds, stands, or
other structures shall be erected in a manner that shall prevent injury to
trees.
(b) Trapping shall be
prohibited within fifty (50) feet of designated boat access sites, boat portage
trails, and other designated public hiking trails, picnic areas, and
campgrounds.
(11)
Carrying or discharging a firearm, bow and arrow, or explosive substances shall
be prohibited for any purpose other than hunting in accordance with state
wildlife laws and the other provisions of this administrative
regulation.
(12) Swimming and other
in-stream recreational uses of a wild river shall be in accordance with Office
of Water Patrol safety standards (402 KAR 4:080 and 402 KAR 4:130) . Entering a wild
river from the shores of a state park for swimming, bathing, or other in-stream
recreational use shall be allowed only in areas designated as swimming areas by
the Department of Parks.
(13)
Conduct that disturbs the peace or causes property damage within a corridor
shall be prohibited.
(14) Public
users of wild rivers shall be encouraged to leave in passing no mark upon the
land that might diminish its value to another, and to make every effort to
protect and enhance the unspoiled beauty of these areas as components of
Kentucky's unique heritage.
Section
7. Enhancement of Recreational Opportunities.
(1) The development of public access to a
wild river shall be compatible with the purposes and intent of KRS 146.200
through 146.360 and the duly adopted management plan for a given river, and
shall conform to the natural character of the area.
(2) Development of public access may be used
to enhance dispersed, nonmechanized recreational opportunities and provide
information on safety, orientation, rules and administrative regulations, and
interpretation of special features in the area.
(3) Trails constructed within a wild river
corridor shall will be designed and maintained to provide for nonmechanized
recreational uses and to prevent soil erosion and compaction, trampling of
vegetation, and other damage to the natural beauty and resources of the
area.
(4) There shall be no cutting
or removal of natural vegetation , living or dead, to create scenic vistas,
except as expressly provided by law.
Section 8. Commercial Uses.
(1) The operator of a new commercial service
within a wild river corridor shall submit written notification to the office
not less than thirty (30) days prior to commencing the use.
(2) The construction of access roads, ramps,
wharves or boat docks, buildings, or other facilities required to effect a
commercial use shall be located outside of a wild river corridor unless
authorized by a change of use permit .
(3) The operator of a commercial service on a
wild river shall comply with all applicable provisions of this administrative
regulation and shall be responsible for ensuring that the commercial use does
not impair or contribute to an adverse impact on the aesthetic, scenic,
ecological, scientific, recreational, or other significant features in the
corridor as identified in the management plan or by the office, or cause
substantial damage to soils, vegetation, fish and wildlife, or water
quality.
(4) The office may
condition or deny commercial use of a wild river , as established in Section
7(4) of this administrative regulation.
(5) In accordance with 304 KAR 1:030,
operation of a commercial activity within a state park shall require prior
written consent from the Department of Parks.
(6) Commercial harvest of mussels by any
method shall be prohibited in areas where mussel species considered endangered
or threatened by the office are known to occur.
Section 9. Scientific Study.
(1) A research permit application shall be
submitted to the office for approval prior to the commencement of any
scientific study that may affect a wild river corridor conforming to 400 KAR 2:090, Section 18(3)(a).
(2) A
final report with results, including data collected in a format supplied by the
office, shall be submitted at the conclusion of the research. This data may be
incorporated by the office into a research clearinghouse and inventory
database, which shall be in accordance with KRS 146.485 and 400 KAR 2:080,
Section 6.
Section 10.
Utility Right-of-way Construction.
(1) As
established in KRS 146.290, the construction of a transmission line or pipeline
right-of-way within any portion of a wild river corridor shall require written
approval from the office prior to the initiation of any construction activities
within the wild river boundaries.
(2) Authorization to construct a right-of-way
shall require request by the owner of the utility or pipeline company or their
engineering representatives, on a written request. The written request shall
include a land use plan containing:
(a) A
U.S. geological survey topographic map to scale not greater than one (1) inch
equal to 500 feet, showing the precise route and dimensions of the
right-of-way;
(b) The estimated
dates for initiation and completion of construction and the name, address and
telephone number of the person or persons in charge of the
construction;
(c) A detailed
description of the methods of construction and specifications, including
profile sheets bearing the seal and signature of a registered professional
engineer;
(d) A statement of
possible alternate routes for the right-of-way and why the proposed route was
selected;
(e) A detailed
reclamation plan designed to return the disturbed area as nearly as possible to
its former appearance and condition, including the use of native species to
revegetate disturbed areas; and
(f)
A detailed description of proposed methods for maintaining the right-of-way,
including the brand names and methods of application of any herbicides to be
used.
(3) Upon receipt
of a written request, an inspection of the proposed construction site shall be
made by office personnel with the property owner and applicant or their
representatives, and personnel from appropriate state and federal
agencies.
(4) The office shall
notify the applicant as to whether or not the written request is approved or
denied within sixty (60) days following receipt of the written request, and
shall state the reasons for the decision.
(5) If an application is denied, the
applicant may submit a revised application to adequately address the reasons
for denial stated in the office's written decision.
(6) A written request shall be approved only
if there is no possible alternative route for the right-of-way that would
bypass or cause less impact to the wild river corridor , and the applicant
agrees to restore all disturbed area within the wild river corridor as nearly
as possible to its former appearance and condition, as required by KRS 146.290.
(7) Construction of a
right-of-way shall comply with paragraphs (a) through (l) of this subsection.
(a) If feasible, the right-of-way shall be
routed to avoid steep slopes, erodible soils, surface waters and areas with
high water tables, public recreation areas, and other significant natural or
cultural areas identified by the office, and shall be the minimum width
necessary for construction and maintenance.
(b) Adequate measures shall be taken to
control sediment and any hazardous substances, and to minimize the visual
impact of the right-of-way when viewed from the wild river or other designated
public use areas.
(c) Any timber
cutting required shall be according to the provisions of 400 KAR 4:140,
Sections 4 through 7, 9 through 14, and Section 17(10) through (21).
(d) Every effort shall be made to minimize
disturbance to the streambed, stream banks and fish and wildlife habitat during
construction activities, and to keep timber slash and other debris out of
surface waters and the immediate floodplain.
(e) Stream crossings by equipment or vehicles
in a wild river corridor shall require the use of a temporary bridge or other
methods approved by the office if evidence is provided that a method is
designed so as not to impede stream flow. Construction across surface waters
shall occur when local fish and wildlife are not spawning or nesting.
(f) Vehicles and equipment shall be stored
outside of the wild river corridor when not in use.
(g) Aerial spraying of herbicides shall not
be permitted within the boundaries of a wild river . Direct application of
herbicides at ground level shall be limited to brands that are nontoxic to fish
and wildlife.
(h) Pipeline relief
valves shall be located outside of the wild river corridors.
(i) Primary consideration shall be given to
underground placement of transmission lines and pipelines. Overhead
transmission lines and towers shall be in accordance with environmental
guidelines required by the U.S. Department of Agriculture's Rural Utilities
Service, and shall be designed so as to prevent electrocution or other injury
to wildlife.
(j) Reclamation shall
consist of establishing a permanent vegetative cover on all disturbed surfaces,
planting native trees or shrubs where necessary to establish a buffer zone
along the banks of the wild river , implementing measures to prevent access by
off-road vehicles, and removing all evidence of construction
activities.
(k) A performance bond,
in an amount to be determined by the office in accordance with KRS 146.290 and
45A.190, shall be required for reclamation if the office determines that the
proposed construction could potentially damage, degrade, or otherwise have an
adverse impact on any significant feature known to occur within the wild river
corridor .
(l) The applicant shall
provide written notice to the office upon completion of reclamation, and office
personnel shall inspect the construction site to verify compliance with all
permit conditions before the bond is released.
Section 11. Road Construction.
(1) In accordance with KRS 146.290, new
permanent roads shall not be constructed within a wild river corridor except as
authorized by the office to enhance recreational opportunities or to protect
soil, water, or other natural resources.
(2) Temporary roads shall be constructed
within a wild river corridor only as necessary to effect a use authorized by a
change of use permit , and shall be closed and reclaimed immediately after the
permitted land use is concluded.
(3) Any construction required to improve,
repair, or replace existing state or county-maintained roads or bridges shall
require full environmental review by the office and other appropriate state
natural resource agencies prior to any construction activity.
(4) During authorized construction
activities, heavy equipment shall not be driven through or into a wild river
unless every feasible precaution has been taken by the operator to prevent
damage to stream-bank vegetation, protect fish and wildlife habitat, control
soil erosion, and prevent stream sedimentation.
(5) If recommended by the office, design
plans for improving or replacing a bridge across a wild river shall consider
provisions for enhancing public access to the river for recreational uses
consistent with the provisions of KRS 146.200 through 146.360.
Section 12. Agency Notification.
(1) State or local government agencies that
engage in or regulate any activity within the watershed of a wild river shall
notify the office prior to the initiation of any activity that could adversely
affect the river, and shall provide the office an opportunity to review
proposals and plans for the new activity.
(2) A change of land use on state-owned lands
within a wild river corridor that does not conform with the purpose and intent
of KRS 146.200 through 146.360 shall require that the state agency that owns
the affected land obtain a change of use permit from the office.
Section 13. Fire Control.
(1) State fire control provisions of KRS
Chapter 149 and any that may be established by cooperative agreement, shall be
strictly enforced.
(2) Fire shall
be controlled by methods that require the least disturbance to soils and
vegetation, and use of heavy equipment shall be limited to situations where an
imminent threat to life or personal property exists. Any fire hazard reduction
or replanting after fire shall be coordinated with the office.
Section 14. Signs.
(1) The posting of commercial signs,
advertisements, announcements, campaign slogans, or other written messages
other than those related to permitted uses shall be prohibited.
(2) As otherwise allowed by law, signs may be
installed by the management agency, local government, landowner , or public
utility for the purpose of public safety, posting of property boundaries, or
property protection, identification of river corridor boundaries and public
access points or as otherwise deemed necessary for resource protection,
interpretation, or regulatory purposes.
(3) Signs shall be of a design and
construction conforming to the natural setting in which they are located and
shall not exceed sixteen (16) square feet in size.
(4) Any person with the permission of the
landowner may post informational and directional signs within a corridor as
necessary to the continuance of an existing use .
Section 15. Enforcement and Hearings.
(1) If the office has reason to believe a
violation of 400 KAR Chapter 4 has occurred, a notice of violation shall be
issued.
(2) The provisions of KRS 224.10-420 shall apply to any office order or determination made pursuant to
the provisions of 400 KAR Chapter 4.
(3) Hearings required to be conducted due to
the issuance of a notice of violation issued pursuant to subsection (1) or the
filing of a petition pursuant to subsection (2) of this section shall be
conducted pursuant to KRS 224.10-440.
(4) Appeals may be taken from any final order
of the cabinet pursuant to KRS 224.10-470.
(5) Violations of the provisions of 400 KAR
Chapter 4 shall be liable to the civil penalty established in KRS 146.990(1).
(6) Orders for remedial
action and recovery of penalties shall be sought pursuant to KRS 146.350.
Notes
STATUTORY AUTHORITY: KRS 146.270, 224.01-110, 224.10-100
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