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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Requests Moratorium On Development Of New Trails And Access to State Natural Lands  Posted: November 18, 2008
November 17, 2008

Hon. Steve Beshear, Governor
State Capitol
Frankfort Kentucky 40601

Dr. Jon Gassett, Commissioner
Kentucky Department of Fish and Wildlife Resources
#1 Sportsman’s Lane
Frankfort, Kentucky 40601
By email

Re: Hensley – Pine Mountain Wildlife Management Area

Dear Governor Beshear and Dr. Gassett:

I’m writing to express the Council’s grave concerns regarding the manner by which the development of a horse trail along the Pine Mountain Wildlife Management Area has been undertaken, and to request that this Administration direct that the KDFWR, in conjunction with other agencies who have management responsibility for Kentucky’s natural, recreational and conservation resources, impose a moratorium on any further development or improvement of access to state-owned and state-managed lands pending the development of guidelines for any further development of trails and other means of accessing such properties for outdoor recreation. The Hensley- Pine Mountain WMA situation is graphic evidence that such a set of guidelines is needed in order to assure that the creation or enhancement of access to these properties for “outdoor recreation” neither interferes with the management of those properties for their established purposes, nor contradicts or interferes with the mandates governing management of the properties or causes the sort of unnecessary ecological damage that often follows a poorly-conceived or poorly-executed project.

After reviewing hundreds of pages of records released to the Council pursuant to the Kentucky Open Records Act, it appears that the initiation of physical construction of a trail, including attendant removal of trees and disturbance of the soils, was initiated on or about in late July, 2008, prior to the county providing the analysis and documentation to which the county had agreed in the Memorandum of Understanding. I could find no record of a “detailed electronic survey showing the exact route of the trial,” no archaeological survey covering the entire route of the trail,” no environmental assessment addressing any potential impact associated with the Project, no detailed electronic plans for the entire project including anticipated clearing of trees, erosion control methods, soils, slopes, vegetative cover, protection of sensitive area and details on supporting infrastructure, and no evidence that all prior written approvals had been obtained from other resource agencies. Nor was a specific timetable for the project provided “prior to beginning any construction on the property,” all of which were clearly outlined as county obligations in the agreement signed by the Letcher County Judge Executive and Letcher County Attorney in the July 2008 Memorandum of Agreement 08-007. Additionally, the vegetation survey, which was to occur in May of the following year, does not appear to have been undertaken.

Indeed, from the e-mails written at the time, it appears that the development of the trail by Letcher County was not at the location that had been initially marked “for further consideration” and that the county had exhibited, in the words of one agency employee, “complete disregard of the MOA[.]” This apparent lack of basic compliance with the requirements of the MOA is of particular concern given the ecological sensitivity of the Pine Mountain Wildlife Management Area. As the County had been notified in correspondence from KDFWR in 2007, “Hensley-Pine Mountain is a sensitive area in terms of wildlife species, vegetation, topography and archaeological sites. It is also very important to sportsmen and women whom have funded the acquisition of the property through their purchase of hunting and fishing licenses and associated equipment.”

Moving forward, KRC respectfully requests that this matter be referred to the U.S. Fish and Wildlife Service for investigation and a determination as to whether a taking of protected species or habitat has occurred, and also that no further work other than site stabilization be undertaken until if and when an Environmental Assessment, fully conforming to the requirements of the National Environmental Policy Act and the Council on Environmental Quality, is developed by a person or person(s) properly trained in such analytical documentation, reviewed by other resource agencies, and subject to public notice and opportunity for review, and until KDFWR and US Fish and Wildlife Service approve any further trail development after review of the EA. Additionally, if the trail project is to continue, the trail development should be undertaken by agency officials or under direct supervision by on-site agency officials, and then only under a revised MOA that conforms to the provisions outlined below. In any event, remediation should be promptly undertaken for stabilization of disturbed areas in order to prevent further erosion.

Among the recommendations that KRC believes must be put into place to prevent recurrences of this type are these:

1. A transparent, public process should be established to assure that any proposal to increase or create public access for outdoor recreation on state-owned or state-managed lands, is:

a. Fully consistent with the purposes and goals, statutes, regulations, and any other legal provisions under which the lands are currently managed;

b. Subject to public notice and opportunity to comment, based on a proposal that contains a complete analysis of anticipated benefits and impacts, based on environmental assessments undertaken by trained and competent professionals;

c. Undertaken by or directly overseen by the agency or agencies responsible for management of the property, under an enforceable memorandum of agreement or understanding containing mandatory penalties and authority to issue stop-work and remedial orders for noncompliance with the terms of the agreement; and

d. Designed, constructed, operated and maintained to prevent damage to the land and water resources, including damage from both motorized and non-motorized outdoor recreational users. The project proponent should be required to demonstrate how unauthorized use of the trail or access will be prevented to avoid trespass on private lands and damage to public lands.

2. To the extent that the Administration contemplates a program of outdoor recreation projects for federal lands within the Commonwealth or on state-owned or state-managed lands within the Commonwealth that are in whole or in part funded with federal funds, a programmatic Environmental Impact Statement should be developed to evaluate the direct, indirect and cumulative effects of prioritizing outdoor recreation as a management objective for these lands, and the potential for conflict between that goal and the other purposes for which these lands are managed. The programmatic EIS should be supplemented with Environmental Assessments for individual projects on such lands.

3. Any local proponent of a project, to the extent that it is not a local public agency, shall include diverse representation from the public, including stakeholders representing conservation interests, in order to assure that potential conflicts among recreational users and other constituencies are addressed at the community level.

It is unfortunate that the Hensley-Pine Mountain WMA Project has unfolded in a manner that validates the reservations expressed by hikers, hunters, and other conservation interests and stakeholders regarding this Administration’s emphasis on outdoor adventure tourism. It is of critical importance that the lessons learned result in creation of a more transparent, accountable process for assuring that this new emphasis does not damage the very resources it seeks to showcase.

Cordially,
Tom FitzGerald
Director


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