The Stream Team offer landowners free repairs to eroding and unstable streams and wetlands. That's right. Free. The team consists of a group of stream restoration specialists in the Kentucky Department of Fish and Wildlife Resources (KDFWR). Their job is to identify and undertake stream restoration projects statewide.
The Stream Team works with private landowners and others to identify stream restoration projects. Projects are funded from the Mitigation Fund held in trust solely for repairing streams and wetlands. No state tax general funds or hunting/fishing license dollars are used.
How Do I Qualify?
Landowners must meet certain criteria:
- Stream Instability and Habitat: The number one stream problem we find in Kentucky waterways is sediment pollution that typically results from bank erosion and slumping. That's why the primary selection criteria are streams that are unstable, eroding, and have trees removed from stream banks. Projects whose primary purpose is sewer improvements or utility lines do not qualify.
- Stream size: A minimum of 1,000 feet of stream is needed to develop stream projects; the longer the project the better. Wide, deep streams or rivers are often too big and expensive to undertake restoration. Typical projects are on small streams ranging in size from the smallest that may go dry in late summer downstream to those that have permanent flow.
- Stream banks: In general, both sides of the stream must be available for work. In many cases, several landowners may be involved in the same project to provide access to both banks and appropriate protection.
- Private or Public Lands: Stream projects may be located on private or public lands. Projects on private land are developed only where landowners are willing and want the project.
- Project Area Protection: All projects must be permanently protected. Stream projects on private lands must be protected by a permanent easement typically at least 50 feet wide on each side of the restored stream. For easements, landowners retain the ownership of the property. In general, the easement restricts development within this corridor to protect the project area. Landowners can be paid for the easement or may donate the easement. Tax benefits from donating an easement for the corridor should be discussed with tax advisors.
Landowner considerations may be and often are included with the projects to meet the needs of property owners. These often include the construction of fords across the stream, fencing, and access to water for livestock.
In some situations, a property can be purchased, but only if landowners are willing sellers and that streams within the property meet program criteria.
- Mineral Ownership and Leases: The project area cannot be mined or developed for oil & gas or other mineral production. Projects are screened during the initial evaluation to determine coal, oil or gas ownership before a project can proceed. Sites where coal, oil, or gas rights cannot be restricted will not qualify. However, in some cases, projects can be developed where there are mineral leases if those leases are no longer active or do not interfere with the project area.
How are projects selected?
Project Selection and Approval: Potential projects are screened by professional Stream Team representatives. First, you should call us to discuss your particular situation and to determine whether you may qualify. Once that determination is made, we will work with you to schedule a site visit to further evaluate the stream. Once we agree that your project may qualify, we prepare and present a conceptual plan to the U.S. Army Corps of Engineers, which has the final authority on project approval.
What Are the Requirements?
- Landowner Interest: Basically, we do not act unless you want us to. Projects that meet criteria are developed only where there is landowner interest. We do not condemn land to develop stream projects. Landowners expressing interest are under no obligations. Projects are not started until you agree to it.
- Property Title: A property title review is conducted as soon as a project is selected for funding. The title review is required to verify ownership and to identify existing easements, liens, or other issues that may need to be addressed before a project is developed. Title review typically takes 60-90 days to complete.
- Easement: A permanent conservation easement is required of all projects. Projects are not developed where landowners do not want the easement. This is similar to rights-of-way except landowners retain ownership of the property. The easement does not grant public access to the project or property.
The primary purposes of the easement are to prevent development near the stream that would negatively affect the project and financial investment in that project, and also to permit access to the stream for construction, maintenance, and monitoring. All easements are surveyed, signed by the landowner and the Commonwealth of Kentucky, and recorded with the respective county clerk.
Currently, the process of creating the easement has two major steps:
- The landowner must sign a contract with the Commonwealth of Kentucky that acknowledges agreement on the project and the easement. The contract allows the Stream Team to hire engineering and surveying consultants to begin restoration design and survey the easement boundary. Landowners have an opportunity to review and approve the easement area and description at this stage.
- The surveyed easement area will be presented to landowners for consideration and approval. After signing, the easement will be recorded by the Stream Team in the local courthouse. This allows the program to finish the project design and begin construction.
How Does the Stream Get Restored?
- Engineering: Stream restoration projects are complex. The engineering phase of projects may take 6-18 months to complete. We conduct an intense analysis of the stream and watershed to develop detailed design plans for a project. Analysis may include hydraulic considerations, stream flow, channel dimensions, stress, construction specifications, and a construction budget estimate. This phase of the project includes obtaining all required permits from Kentucky Division of Water and U.S. Army Corps of Engineers.
Typically, private engineering firms are hired to complete the project design plans, construction specifications, and project budget. Engineering firms also oversee construction of projects to ensure they are built to specifications. Again, this is at no cost to the landowner.
- Construction: Construction of stream mitigation projects may take 3-9 months, depending on scope and complexity. Typically, construction involves a combination of reshaping stream banks, constructing new channel, installing rock or wood structures to direct flow and reduce erosion, and planting trees along the stream within the easement. Trees are typically planted during winter or very early spring.
- Monitoring: Projects are monitored annually by Stream Team representatives for a minimum of five years to measure success and make any adjustments that might be needed after construction. After the initial year monitoring effort, easements will be permanently monitored for compliance.
Permit Impact Table
New Instrument FILO Impact Table - Wetlands
New Instrument FILO Impact Table - Streams
FILO Impact Table
Will add info here after I receive it
Explanation of Credit Rates for the In-Lieu Fee Mitigation Program
Kentucky Revised Statute 150.255 authorizes the Kentucky Department of Fish & Wildlife Resources to conduct mitigation and to recover costs associated conducting mitigation. No state general fund tax dollars or Department license dollars are used to fund the program.
Federal regulations require that in-lieu fee Sponsors use full cost accounting in setting credit prices in accordance with the “Final Rule” at 33 C.F.R. §332.8(o)(5)(ii). This means that credit rates must be sufficient to fund all costs of an in-lieu fee mitigation program. The Sponsor shall determine the cost of compensatory mitigation credits.
Pursuant to the federal regulation, the Instrument authorized by the U.S. Army Corps of Engineers for the in-lieu fee program officially established the Department as an in-lieu fee Sponsor and the rules for setting credit rates. The Instrument requires the Department to set fees,
“…to reflect the expected costs associated with the mitigation, based on "full cost accounting" and include, as appropriate: land or easement acquisition, project planning and design, construction, plant materials, labor, legal fees, monitoring, remediation or adaptive management activities, administrative costs, contingencies (including construction and real estate expenses), long term management and protection, financial assurances, or other costs. The Sponsor may adjust fees as necessary ...”
The in-lieu fee mitigation credit rate funds activities in three main categories of activities required to implement mitigation:
Administrative: 10%-20% (variable)
Service Areas: 70%-80% (variable)
The credit rate is based on the historic and forecasted costs of implementing mitigation projects including property and conservation easement costs. Administrative and Reserve percentages are added to those costs.
Historically, the in-lieu fee credit rate was set by the Corps of Engineers and was based on the average cost of previous mitigation projects. Under this past practice the rate was adjusted after project costs were incurred. That approach to setting the credit rate created a situation where in-lieu fees could be paid at a rate lower than future actual costs of mitigation projects, which could result in less mitigation.
The 2008 Final Rule on mitigation changed this practice by requiring that in-lieu fee Sponsors set credit rates to fully fund all costs and change to a credit based accounting system for compliance. The in-lieu fee program now sets the rate not only from examining past project costs but also by estimating future project costs to comply with the 2008 Final Rule. This guards against defaulting on mitigation credit replacement since the in-lieu fee program is responsible to replace mitigation credits equal to the amount sold. The in-lieu fee program has identified potential future projects and set the credit rate at an amount needed to fund those projects instead of relying solely on the average rate of completed projects.
A general explanation of the in-lieu fee program costs funded by the credit rate is provided below:
- The credit rate includes a percentage that is used to fund administration of the program. That percentage varies between 10-20% and is based on current and projected operational expenses as well as projected sales.
- Administrative functions include tasks completed by Department or other state government staff, or professional services, for identifying, planning, and operation of the program including equipment and materials. Operation of the program may include other aspects necessary to complete mitigation projects such as design, monitoring, management, easement enforcement, legal actions, or other activity.
Service Area Costs:
This category funds the design, construction, and monitoring of individual mitigation projects: property work, survey, design, construction and monitoring. The percentage of each credit that is devoted to the Service Area is between 70-80%. Monies from credit sales are distributed to the Service Area (a region based on river basins and physiography) from where they originated. There are ten service areas across the state. Funds from a service area are dedicated solely for projects in that same area. The following project related tasks are funded from the Service Area portion of credit sales:
- Property acquisition or other permanent protection mechanisms:
Permanent protection is required for all mitigation projects. This is accomplished by deed restrictions for property purchases or easements on other properties. Property acquisition and permanent protection involves costs associated with legal reviews, title opinions, curative work to correct defective property titles, surveys, and property costs. Some in-lieu fee mitigation sites involve the acquisition of large tracts of land to conduct stream mitigation in headwaters while others are limited to an easement to create a protected buffer of land along the riparian corridor of a stream project.
- Engineering design:
This is the phase of mitigation projects that involves surveying property boundaries for creating the easement, topographic surveys, analyses for the project such as shear stress, hydraulic, and sediment loading calculations, the development of design plans showing plan form, longitudinal profile, cross sections, specifications for structures, standard drawings, preparing permit applications, and development of a construction budget. Engineering services include construction oversight to insure that construction correctly implements the design plans and to verify invoices for construction. Engineering services are normally contracted to private firms.
This phase involves capital construction of individual mitigation projects. Construction contracts are awarded to private companies through a low-bid process. The construction is typically bonded and includes a warranty period on the contract. Normally, construction of mitigation projects is classified as heavy construction. Construction typically requires heavy equipment such as an excavator, dozer, bobcat, and/or other equipment. This phase also includes planting of trees and/or other vegetation.
- Adaptive management:
Each project includes a percentage of the overall project costs that is set aside to cover unexpected costs. The percentage that is set aside for adaptive management varies but is normally 10% of the project budget.
- Monitoring (minimum of five years post-construction):
All projects are monitored after completion as required by the Instrument and the Corps of Engineers and Kentucky Division of Water permits for each project. Each project must meet performance standards during the monitoring period before mitigation credits are validated. Monitoring includes conducting as-built survey(s), hydrogeomorphological measurements and observations, and vegetation surveys. The monitoring period is a minimum of five years but may last longer depending on the permit requirements for a particular project. Monitoring is typically contracted to the engineering firm that completed the design of the project.
The Reserve has multiple purposes and is 10% of the credit rate. It functions as financial assurance, a funding source for long-term management, easement monitoring and enforcement, legal actions, or for funding additional mitigation projects. The Reserve has a minimum non-wasting limit that functions as an endowment. The non-wasting limit enables the program to maintain enough funding to meet mitigation obligations over the long-term. The Reserve is maintained by credit sales and interest accruing to the program account. The credit price includes a percentage that is dedicated to the Reserve upon receipt of payment for each credit sale. Interest accruing to the in-lieu fee account (except for the Administrative percentage) is included in the Reserve on a monthly basis. Activities funded by the Reserve are subject to the approval of the Corps of Engineers, except for minor actions that do not require permit authorization.
The following tasks and activities are funded from the Reserve:
- Long-term management:
Long-term management is required of all mitigation projects. Management actions can include maintaining property boundaries, management of vegetation such as periodic burning of fire-dependent communities or suppression of exotic/invasive species, supplemental planting, signage, fencing, maintenance, or other items necessary to maintain mitigation sites.
- Financial assurances and contingency:
The Reserve provides funding to act as a contingency for the program. The in-lieu fee mitigation program is required to have the financial backing to ensure that the credits sold are replaced and fulfilled by successfully implementing mitigation projects. The Reserve provides assurances that funding will be available to create additional mitigation credits in any service area.
Legal actions including litigation may be funded from the reserve. Examples may include enforcement of easement violations.
- Mitigation projects:
The Reserve, except for the non-wasting minimum amount, may also be used to fund mitigation projects. Mitigation projects funded from the Reserve may generate mitigation credits in the service area where they are located.
Veteran's Memorial WMA
Above: over 90,000 feet of unstable headwater streams will be restored on Veteran’s Memorial WMA to reduce erosion and siltation impacts downstream, and to improve stream and wetland habitat along riparian corridors. Project targeted for 2013-2014 construction.