Land Stewardship and Conservation Task Force


Minutes of the<MeetNo1> 1st Meeting

of the 2009 Interim


<MeetMDY1> July 9, 2009


The<MeetNo2> 1st meeting of the Land Stewardship and Conservation Task Force was held on<Day> Thursday,<MeetMDY2> July 9, 2009, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Representative Robin L. Webb, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Brandon Smith, Co-Chair; Representative Robin L. Webb, Co-Chair; Rick Allen, Hugh Archer, Larry Arnett, C. V. Bennett, Frances Brown, William Brown, Mark Dennen, Don Dott, Jon Gassett, Tim Guilfoile, Elizabeth Lloyd Jones, Temple Juett, Bob Marrett, William Martin, K.A. Owens, Scott Travis, Larry Whitaker, and Bruce Williams.


Guests:  Representative Charlie Hoffman; Leah MacSwords, Division of Forestry; Greg Kuhns, vice president of the Kentucky Woodland Owners Association; Lynn Garrison, formerly of Kentucky Department of Fish and Wildlife Resources; and Stephen A. Coleman, Division of Conservation.


LRC Staff:  Stefan Kasacavage, Ashlee McDonald, and Katie Carney.


Representative Webb, Chair, called the meeting to order.  A quorum was present.  Chair Webb made opening remarks regarding the goals that the task force would be trying to achieve.  The purpose of the task force was to bring together the diverse group of Kentuckians affected by land stewardship and conservation policy.  Together, they could discuss legislation that had been passed in other states in order to craft a policy that would be effective in Kentucky.  She acknowledged that the Commonwealth was facing difficult economic times, but through creative and thoughtful proposals, the task force could help to draft legislation that would preserve our land and better utilize the resources that we have.  She welcomed and thanked the members to the meeting and then asked Co-Chair Smith if he had any opening comments.


Co-Chair Smith welcomed the members of the committee and said that he looked forward to working with them.


After the members introduced themselves, Chair Webb asked Bruce Williams from the Kentucky Conservation Committee to briefly discuss the 2008 Report of the Land Stewardship and Conservation Task Force (Research Memorandum No. 502).


Mr. Williams began by stating that the purpose for forming the original Land Stewardship and Conservation Task Force in 2007 was to respond to the rapid land development that was then occurring within the Commonwealth.  The state had four separate entities that were trying to accomplish land preservation, but each had its own agenda and often times the entities would compete with each other over limited resources to accomplish their goals.  There was no coherent, comprehensive mechanism for making land conservation decisions, especially for large tracts of land that had high recreational and environmental value.  Unfortunately, Kentucky has very little land under any protection from development relative to other states – Brown County State Park in Indiana is larger than all of Kentucky’s state parks combined.  The first task force did well to raise awareness for land conservation challenges within the Commonwealth, but little was accomplished legislatively.  The current task force is limited in its scope by 08 HCR 93 to producing legislative proposals relating to the funding, assessment, prioritization, and acquisition of conservation, recreation, and preservation properties in the Commonwealth for consideration by the 2010 General Assembly.  Mr. Williams concluded by stating that this was a narrow charge, and that he is interested in developing a comprehensive statewide land conservation program with a stable funding source. 


Chair Webb outlined the meeting agenda and asked Commissioner Gassett of the Kentucky Department of Fish Wildlife Resources (KDFWR) to discuss the current state of land stewardship and conservation programs being administered by the department.


Commissioner Gassett began with a power point presentation regarding KDFWR’s land stewardship programs.  The KDFWR focuses on land acquisition and protection – from purchasing land or conservation easements to entering into conservation or land use agreements with private landowners.  KDFWR also spends a tremendous amount of resources protecting habitats and critical areas on private lands without a formal agreement between KDFWR and the landowners.  This is done using funds from the federal farm bill (KDFWR spends over $20 million per year to protect wildlife habitats on family farms). 


About two years ago, the department developed a five year strategic plan, which is being aggressively pursued.  The department’s mission is to provide stewardship for Kentucky wildlife and to provide ample opportunity for citizens to engage in recreational enjoyment of that wildlife.  KDFWR is completely user-funded; its revenues are generated from license sales, federal funds from excise taxes on the sale of firearms, ammunition, and other hunting implements.  The top priority for the department is to provide access for recreational hunting and fishing and other outdoor activities by acquiring lands for users to participate in those activities.  The department has acquired 2,888 acres through a variety of funding sources since the last meeting of the task force.  These sources include the Recovery Land Grant (federal program), the Forest Legacy Program (federal program), the Kentucky Land Heritage Trust Fund, the Fees in Lieu of Fund (FILO), and private donations.  The total land owned by KDFWR is currently 137,069 acres.


Commissioner Gassett continued by discussing land access agreements.  Land access agreements do not transfer ownership of the land to KDFWR, but the department does get to exercise a reasonable amount of control over the lands.  Through these agreements, private landowners allow public access to their land for hunting, fishing, and wildlife-related activities in exchange for increased law enforcement protection, signage, and gates from KDFWR.  They are typically five year agreements that are renegotiated on a rotating basis.  The total acreage under land access agreements currently is about 200,000 acres, which is an almost sevenfold increase over the past three years.  Most of these lands are in the eastern part of the state where the elk herd can be found.  KDFWR is currently pursuing a wide range of land acquisitions within the Commonwealth.


Commissioner Gassett concluded his presentation by citing public opinion polls that he believed was useful in guiding land acquisition decisions.  Nearly two million Kentucky residents (almost half of the Commonwealth’s population) over the age of sixteen have participated in wildlife recreation of some sort.  These outdoor recreationalists are not just hunting or angling, in fact hunters and anglers are in the minority.  The majority of the recreationalists are enjoying outdoor wildlife activities such as photography, boating, hiking, wildlife watching.  Resident wildlife enthusiasts have spent $1.9 billion and nonresidents had spent $200 million to enjoy wildlife recreation in Kentucky according to a 2006 national survey.  According to a 2008 survey by the UK Survey Research Center, 70% of those polled favored direct tax credits for land donated for conservation and access, 36% were more likely to fish with greater access, and 15% were more likely to hunt with greater access.  Those surveyed were willing to drive on average 33 miles to hunt, 44 miles to fish, and 42 miles to watch wildlife.  Commissioner Gassett believes that these average driving distances show that it is necessary to offer more access closer to more densely populated areas of the Commonwealth (the Golden Triangle between Louisville, Lexington, and Northern Kentucky) so that wildlife recreation can compete with other forms of diversion.


Commissioner Gassett recommended that the task force consider the following for their legislative proposals: enacting a conservation easement tax credit program, implementing recommendations from the long-term funding task force, increasing land purchases emphasizing the Golden Triangle and the 30 minute drive, and increasing land use agreements.   


Mr. Brown asked if bird watching was a wildlife-associated recreation and Commissioner Gassett responded that it was, and that it was a component in considering land acquisitions.  Commissioner Gassett said that this brought up the important point of how to charge non-consumptive users for their access to conserved lands.  Non-consumptive users account for seventy-six percent of the use of the department’s wildlife management areas (WMAs), which were paid for with hunting and angling licenses.  Everybody needs to pay for conservation and wildlife-associated access, not just the consumptive users (anglers and hunters).


Mr. Archer commented that Kentucky was the only state in the southeast that did not provide tax credits for land donated for conservation and access and that he was glad that 70% of Kentuckians favored the implementation of tax credits.  He then asked if the 70% was specifically in favor of the tax credit for lands donated for hunting and fishing access.  Commissioner Gassett responded affirmatively, which would imply that offering tax credits for other conservation uses would garner even broader support.


Co-chair Smith asked about legislation that had passed several years ago that required the purchase of a sticker to be placed on the windshield of a boat before it could be launched.  Only some counties in eastern Kentucky complied with the law, which was later repealed. He also asked about the money paid to boaters in the eastern part of the state who had complied with the law before it was repealed.


Commissioner Gassett replied that it was a state parks program, so he assumed that the money went into the general fund through the Department of Parks.


Mr. Owens asked what FILO funds were.


Commissioner Gassett responded that FILO stood for “fees in lieu of” mitigation.  When streams are disrupted by development, the developer has three options: onsite mitigation by repairing the stream that was damaged, offsite mitigation by repairing a stream in a different location, or if he or she is approved, he or she can pay a fee in lieu of mitigation.  The fee is paid for each foot of stream that is damaged, which goes into a pool of money that is managed by KDFWR, the Army Corps of Engineers, EPA, the US Fish and Wildlife Service, and the Division of Water.  Louisville and Northern Kentucky MSDs manage their own FILO program.


Chair Webb added that the mitigation program was in compliance with the federal 404 water program, which was studied exhaustively in a previous task force.


Dr. Kuhns asked for more information regarding working forest easements.


Commissioner Gassett said that KDFWR does not currently hold a working forest easement, but there is one pending in Crittenden and Union County.  He is not sure if the Division of Forestry holds any or not.  A working forest easement restricts development and subdivision of the property, but still allows a timber company who owns the property to responsibly manage the timber resources on that property.  In other words, they adhere to best management practices and in many instances are certified through sustainable forestry initiatives.  It keeps property intact and promotes responsible timber management.


Dr. Kuhns then asked if most of KDFWR’s lands are held in conservation easements.


Commissioner Gassett responded that the most of their lands are not under conservation easements, because once KDFWR owns a piece of land, it is protected in perpetuity. In the future, the department will try to hold more easements because it is a cheaper alternative to land acquisition.  The only problem is that it is difficult to spend KDFWR money on a conservation easement if there is no access component because the people who provide revenue to the department demand access.


Mr. Williams commented with regard to the Kimble property that it demonstrated the state’s inability to act quickly to make large-scale land acquisitions when they became available.  He would like to see this problem addressed.


Commissioner Gassett said that the Kimble property was a $20 million acquisition that happened in a matter of hours at an auction.  Only a private corporation could have made that deal.  It takes KDFWR between eighteen months and two years to buy a piece of property.  When a private corporation is liquidating, they cannot wait that long to sell their property.  He agrees that the state does need to be able to act more quickly in those situations.


Mr. Guilfoile asked about KDFWR using FILO for land purchases for protection from development, he questioned their flexibility with the FILO funds, and asked if it is under the purview of the board.  Mr. Guilfoile also asked if there are federal regulations that say a certain percentage of the money must be spent in that way.


Commissioner Gassett responded that it was both: the expenditure must be approved by the board and he believes that a maximum of ten percent of the money that has been paid into that watershed can be used on protection and the other ninety percent must be spent on restoration. 


Mr. Juett asked if the department was more interested in pursuing more land use agreements or outright land acquisitions as part of its future land conservation strategy.


Commissioner Gassett replied that the department had to do both.  The limited funds that the department had must be maximized to the greatest extent possible, which meant pursuing both paths.


Mr. Juett then asked if the current recreational land use statutes were sufficient to cover liability issues in the department’s land use agreements with private landowners.


Commissioner Gassett said that as long as landowners were not charging for access, then the landowners were sufficiently protected under the current recreational land use statutes.  If land is leased, however, the statutes may need to be amended to further protect landowners.


Chair Webb added that this same issue is being faced in adventure tourism, a good example of which is the issue of liability for offsite events for the upcoming World Equestrian Games.  Chair Webb continued that there were three important points that have been discussed before and that the task force needs to continue to think about.  The amount of time it takes to purchase property:  interagency cooperation has improved, but a more seamless process for acquiring these properties would be very helpful in the future.  Out of state timber companies are divesting large tracts of property in eastern Kentucky, so time is of the essence to acquire these tracts as they become available.  Green spaces in high population areas should be identified and put to better use.  These areas add value to surrounding properties and citizens like to be close to these areas.


Chair Webb next asked Director Leah MacSwords to give an update on the state of the Division of Forestry’s land conservation programs.  Chair Webb added that she wanted to apologize for the budget cuts that the division had suffered in recent years, but that the department should be commended for the work that it does under the circumstances.


Director MacSwords began her power point presentation on the Division of Forestry’s land conservation programs.  There are forests in every county in the state of Kentucky, the forestlands are not solely found in the eastern part of the state.  There are 11.1 million acres of forestland in Kentucky, which is about 47% of the land area of the state. About 78% of the forestlands are owned by private landowners.  Forest industry owns 2% of the forestland, 10% is owned by “other corporate ownerships” and 9% is publicly held.  The forest industry has an annual impact of $8.7 billion dollars on the state’s economy, which includes all forest industries, direct, indirect and induced costs.  The forest industry is second only to the horse industry in Kentucky in economic impact.  The primary threat to Kentucky forestlands is their conversion to other uses.  Other threats include urban growth, forest fragmentation, and uncontrolled wildfire.  Insects and diseases as well as invasive foreign species also threaten our forest lands.


Director MacSwords continued by discussing the future of the DOF and its land acquisition priorities and strategies.  The 2008 Farm Bill required all state forestry agencies to prepare a statewide assessment of their forest resources and their strategies before they can apply for funds made available to the states by the US Forest Service.  However, the DOF does not have, and was not provided with, sufficient funds to formulate the assessment.  The DOF will probably rely heavily on a similar statewide assessment done by KDFWR to draft its own assessment which must be completed by June 1, 2010.  The top five forestry-related issues identified in a recent DOF online public survey were: forest health, water quality and quantities, loss of forestlands, forest management, and funding.  Using these issues, the DOF will develop the statewide assessment and strategy.


Mr. Guilfoile asked if there was a good definition for “forest”.


Director MacSwords responded that there are multiple definitions.  Under the US Forest Service definition, there must be a certain number of stems per acre.  There is no definition for “forest” in the Kentucky statutes, but there is a definition of “timberland” – it must be capable of timber production and protection of wildlife.


Mr. Guilfoile said that the reason why he asked was because he saw a map of Kentucky forests that made them to appear to be very fragmented, so they would not lend themselves to creating wildlife corridors.


Director MacSwords agreed that there was an increasing amount of fragmentation of Kentucky’s forests, primarily due to infrastructure development.  This fact makes it even more important for state agencies to work together to buy large tracts of forest as they become available so that they can be kept together and wildlife corridors can be maintained.


Mr. Archer observed that most of the forest ownership lots are less than 40 acres, and that lots must be one to two thousand acres before they can be managed efficiently and effectively.  It is difficult to encourage forest owners to keep their properties intact, since it costs them more to own it than they can make off of a timber cutting which occurs only once every 40-70 years.  Mr. Archer then asked if Director MacSwords could talk about future plans for forest owner cooperatives that bring small tracts together into economically manageable areas.


Director MacSwords responded that the DOF had been working with the University of Kentucky to try to establish local forestry organizations that will work together in their own areas to set local conservation priorities.  There are currently about 6 local organizations that are either single county organizations or multi-county organizations addressing forestry issues in their own areas.


Mr. Bennett asked what impact the renewable energy requirements would have on Kentucky’s forest.


Director MacSwords said that wood will play an important role in meeting Kentucky’s renewable energy needs.  The challenge will be to make sure that the timber being harvested for energy production is harvested and recultivated sustainably. 


Mr. Bennett continued that he believed that forests would be decimated within a 100 mile radius of the coal-fired power plants where the timber would be co-fired with the coal.  People underestimate how much wood will be taken from forests to meet these renewable energy requirements.  Given the BTU content of wood versus that of coal, it will take twice as much wood as coal to produce the same amount of energy. 


Director MacSwords responded that this would be an issue that the task force should consider because currently there are no restrictions on any forest landowner as to how much they can harvest or where they can harvest.  The only restriction is that they cannot pollute the waters of the Commonwealth through their harvesting operation; best management practices must be used.  It will be important to consider whether the type of wood used for energy production should be restricted to certain types or whether the area from which wood could be harvested for energy production should be restricted.  Also, federal standards for what kind of woody biomass will count towards meeting a renewable energy standard will need to be considered.


Mr. Travis asked if there was a university study of what species of trees would be ideal for quick cultivation for energy production.


Director MacSwords responded that those studies have been conducted to determine what trees would be ideal for cultivation for energy production.  Right now, wood sold for product production is more valuable than wood sold to be chipped for energy production.  This may change in the future.


Dr. Kuhns asked how agricultural districts could be used to bring smaller private woodland landowners together for joint forest management.


Director MacSwords replied that such agricultural districts were in existence – if there are landowners in an area that is agricultural land, which includes forestland, then they can come together to form an agricultural district.  Once formed, they could be eligible for certification programs for the management of larger blocks of forestlands.


Chair Webb noted that the University of Kentucky was a national leader in reforestation and biomass research.  She added that the current discussion would be interesting to Rep. Ballard and the Energy Committee and that this information should be shared with that committee.  She also thanked Rep. Hoffman for being in attendance.  Next, Dr. William Martin from the Kentucky Heritage Land Conservation Fund (KHLCF) was asked to give his report.


Dr. Martin began by explaining that the KHLCF was the state’s program that provides funds for all of the state natural resources agencies, as well as for local governments, colleges, universities, and other agencies that can acquire land in order to maintain the land in its natural state.  The fund board was created by statute in 1990 with the purpose of offering land conservation funding to preserve lands that fall into one of the following four categories: lands that have unique features that harbor important or unique species, lands that host migratory animals, lands that have important natural functions such as watersheds, wetlands, and old-growth forests, and lands that are used for outdoor recreation, public use, or environmental education.  However, it was not until 1994 that the General Assembly provided funding for the board to make those acquisitions.  The three sources of revenue for the fund are: the state portion of the unmined minerals tax, environmental fines collected by the Environmental and Public Protection Cabinet (Energy and Environment Cabinet), and the sale of the state nature license plates.  The fund is administered by a twelve member board, through which each of the state’s resource agencies are represented either directly or indirectly, along with seven citizen members, as dictated by statute.  The statutes also determine how the money in the fund, which historically has $4-6 million per year, is spent: 10% goes to Kentucky Department of Fish and Wildlife Resources, 10% to Department of Parks, 10% to the Division of Forestry, 10% to the Nature Preserves Commission, and 10% to the Wild Rivers Program.  The remaining 50% is awarded in grants to local governments, which is broadly defined as anything that has an elected body that will be governing the use of the land, including state colleges and universities and other agencies.  During the 2008 fiscal year, the KHLCF was used to purchase over 12,000 acres of natural areas and wildlife habitats in 10 different counties.  Over the 15 year history of the KHLCF, 175 projects in 65 counties have been approved and land has been acquired through 116 projects in 55 counties, totaling 32,000 acres.  This may seem like a lot, but the latest federal report on the subject said that Kentucky’s land was disappearing at the rate of 130 acres per day, which is over a square mile per week.  If you assume that only 100 acres per day is being converted, then more land is disappearing in one year than has been acquired by the fund in 15 years.


Mr. Brown asked if other states, like North Carolina, are able to conserve more land than Kentucky in a shorter period of time due to better funding mechanisms.


Dr. Martin responded that other states were better able to conserve more land and that Lynn Garrison would be discussing land conservation programs and legislation in other states.  Taxes, bonding, and other dedicated funding streams in other states lead to a much more land conservation in those states.


Mr. Archer commented that land acquisition process problems in state government need to be addressed, especially in Finance Cabinet staffing shortages.


Mr. Marrett said that he was skeptical that 130 acres of land were being developed per day in Kentucky.  He is a very active developer in Jefferson County, and there is nothing going on there right now.  That study may have been accurate years ago, but given the current economic downturn, he does not believe that the number is still accurate.  Maybe land is being lost to farming or other things, but not to real estate development.


Dr. Martin replied that land was not only being lost to real estate development but also to the construction of highways.  The report was from the Natural Resources Conservation Service.  It was a federal report, but the number quoted was only for Kentucky.  The amount of development going on now is very small compared to a few years ago, but the economic slowdown will end eventually and Kentucky will continue to increase in population and convert undeveloped land into developed land.


Chair Webb added that you must also consider the environmental degradation caused by a development that is not solely limited to the project’s footprint.  She then asked Frances Brown from the Purchase of Agricultural Conservation Easements Board to give her presentation.


Ms. Brown began by explaining that PACE is an appointed board with a number of government officials as well as 6 members representing each Kentucky Congressional district.  PACE purchases agricultural easements from voluntary participants in the program.  Since 1994, PACE has executed 122 easements, 88 have been purchased, and 34 have been donated.  Many of the donated easements have been acquired over the past few years from applicants who have grown tired of waiting for funds to become available to purchase the easements.  There are 667 PACE applications pending, which represent 129,000 acres that could be entered into agricultural easements.  PACE currently has over 25,000 acres under agricultural easements.  Since there is no available money for PACE at the moment, they cannot purchase new easements and they are losing federal matching funds that would otherwise be available.  In fact, there is not even enough money available to process the donated easements – donation applicants are being asked to help with processing costs.


Mr. Brown commented that Shelby and Henry County are starting their own PDR programs because PACE is so short on money.


Rep. Hoffman commended the co-chairs for their leadership on land conservation issues.  Although there is currently a lull in development in the state, there is still quite a bit of development going on, especially within the Golden Triangle.  As a member of the Tobacco Oversight Committee, he recently heard a proposal by Scott County to start a PDR funding using tobacco oversight money.  The tobacco settlement fund money has been raided by the General Assembly to pay for water and sewer projects throughout the state.  Ironically, by using tobacco settlement money to pay for laying water and sewage lines in rural areas of the state, we are expediting urban sprawl.  The money that is supposed to be used to diversify agriculture away from tobacco dependence is being used to promote the development of agricultural land.


Chair Webb thanked Rep. Hoffman for his remarks and asked Lynn Garrison to come forward to give his report.


Mr. Garrison began by updating the task force on the dedicated funding approaches being used for land conservation programs in other states.  Other states use a variety of different funding sources for land conservation programs: tax incentives, including credits for conservation easements, bonding, both general obligation bonds and revenue bonds, fractional sales tax increases (in some states these have been constitutionally protected), lottery revenues (Arizona, Colorado, Maine, Minnesota, Nebraska, and other states), real estate transfer tax (eastern seaboard states and Tennessee), mineral leases (Louisiana and Michigan), and user fees (hunting and fishing licenses and access fees).   The most important state land conservation funding initiative passed since 2007 was the Minnesota sales tax increase.  Minnesota passed a constitutional amendment that increased the sales tax there by 3/8 of 1% to be used for clean water, wildlife, wildlife, cultural heritage, and natural area protection.  Initially, this was projected to provide about $300 million per year, but due to the economic downturn, it has provided $241.6 million in its first year.  Iowa has a similar amendment that will be a ballot initiative in 2010.  In 2007, Texas lifted the $32 million cap on the sporting goods sales tax which is used for parks and wildlife.  Connecticut, New Hampshire, and West Virginia have increased their deed fees to fund land conservation.  Florida extended its $300 million bond-funded land conservation program until 2020.  Maryland added a 25% on existing agricultural transfer taxes in 2008 to be used for rural land preservation and should bring $2-3 million per year. 


Chair Webb thanked the presenters, members, and staff for an informative meeting. 


There being no further business, Chair Webb adjourned the meeting.