Chesterton Tribune



DNR must submit Pavilion plans to NPS before work resumes

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The Land and Water Conservation Fund (LWCF) program officers at the Midwest Regional Office of the National Park Service apparently see no necessary reason why the restoration of the Pavilion--halted some 10 months ago--may not resume this fall.

But the ball is entirely in the court of the Indiana Department of Natural Resources. Or--perhaps more accurately--the ball is in the court of Pavilion Partners LLC.

At issue is the DNR’s obligation to maintain in perpetuity, as public outdoor recreation facilities, all sites, footprints, and properties “assisted”--that is, developed--with federal moneys awarded through the LWCF Act of 1965. One such site is the Pavilion at Indiana Dunes State Park beach, the remodeling of which was funded by a $174,862 LWCF grant in 1972. In the years since Dunes State Park has been the recipient of several other LWCF grants as well: $71,400 in 1974 for campground comfort stations; $62,000 in 1984 for picnic restrooms; $245,000 in 1987 for the Nature Center.

It’s not illegal or otherwise prohibited to change the use of a LWCF-encumbered public facility, to “convert” it into a non-public or non-recreational or non-outdoor one. It may not be especially uncommon either, given the sheer number of pages in the Federal Register pertaining to conversions, review and approval of which have been tasked to NPS.

But if Pavilion Partners’ plans for the Pavilion or a banquet center do constitute a conversion, then the DNR will be required to substitute--in place of the footprint removed from public or recreational or outdoor use--“other recreation properties determined by NPS to be of at least equal fair market value and of reasonably equivalent usefulness and location.”

At this point, however, NPS has made no formal determination as to whether, say, a banquet center at the beach would constitute a conversion requiring a property substitution. That’s because, as of June 14, the DNR had submitted no formal proposal to NPS regarding the LLC’s final plans. And that’s because, as of June 14, Pavilion Partners had evidently not provided its final plans to the DNR.

That’s the gist of a letter, dated June 14 and addressed to DNR Director Cameron Clark, from Roger Knowlton, acting chief, recreation grants, at the NPS Midwest Regional Office. And until NPS does receive a formal proposal from the DNR, the restoration of the Pavilion must remain in abeyance.

Knowlton’s letter is actually a memorialization of the salient points made in a previous undated discussion between NPS and the DNR, and his chief concern seems to be a reiteration of NPS’ insistence that no further construction take place until NPS receives a submission from the DNR. “You inquired about moving forward with the pavilion restoration project,” Knowlton writes. “We informed you that work may not continue until the IDNR submits the project for approval to the NPS as either a Public Facility or Conversion of Use per the 2008 LWCF Federal Financial Assistance Manual Chapter 8.E.10.”

“We understand that IDNR would like to allow Pavilion Partners to start work in the fall,” Knowlton adds. “Therefore we encourage IDNR to develop a proposal as soon as possible so that compliance with the LWCF program can be maintained. Although the IDNR does not have the final plans for the Indiana Dunes State Park Pavilion Project, the next iteration of construction plans should be available for NPS review within the next month.”

“We look forward to receiving your project description and construction plans soon,” Knowlton concludes.

One other item of interest in the letter: Knowlton’s flat statement that, whatever NPS’ finding happens to be, the lease agreement between the DNR and Pavilion Partners will need to be amended. “Whether the project is eligible for a public facility determination or if the project will trigger a conversion, changes to the lease with Pavilion Partners would be necessary to ensure compliance with the LWCF program.”

Knowlton was unable to tell the Chesterton Tribune on Wednesday what sorts of changes specifically might need to be made, but they would likely be minor and along the lines of boilerplate. “They’ll probably just need to change or add a few words here and there,” he said.


It is true that, more than a year ago, on June 5, 2015, the DNR briefed NPS on the general contours of the project and in that meeting NPS offered the DNR some pointed guidance, as NPS Midwest Regional Director Cameron Sholly informed the Public Employees for Environmental Responsibility in a letter dated Dec. 4, 2015. “At that time, we advised the IDNR that several of the prospective uses would be non-compliant, and if carried out, would constitute a conversion that would trigger NPS involvement,” Sholly writes.

On the other hand, NPS’ actual enforcement powers are limited. The LWCF Act “does not give the NPS the authority to usurp a grantee’s ownership and control of its property and facilities, nor does it remove the grantee’s sovereign responsibility for making its own decisions on how to manage its holdings,” Sholly notes. “Rather, the NPS will assess the loss of LWCF-encumbered park land due to all non-compliant conditions and the subsequent mitigation which would be required under LWCF.”

Generally speaking, NPS has viewed the indoor activities associated with “restaurants and exercise areas” as LWCF-compliant, because they are “supporting of and contributing to the public outdoor recreational experience,” Sholly writes. But private events like weddings and receptions held at the Pavilion would be non-compliant. “Likewise, the construction of new banquet facilities not accessible to the public could not be approved as a public facility . . . and would result in a conversion.”

The LWCF Act is crystal clear, however, on the prerequisites for conversion approval, and before NPS will even consider a conversion request a number of prerequisites must first be met. They include the following, according to the Federal Register:

¥“All practical alternatives to the proposed conversion have been evaluated.”

¥“The fair market value of property to be converted has been established and the property proposed for substitution is of at least equal fair market value.”

¥But “land currently in public ownership, including that which is owned by another public agency, may not be used as replacement land” unless certain conditions are met, one of them being this: the land “was not acquired by the sponsor or selling agency for recreation,” and “has not been dedicated or managed for recreational purposes while in public ownership.”

¥“The guidelines for environmental evaluation have been satisfactorily completed and considered by NPS during its review of the proposed conversion.”

Environmental Evaluation

Whether or not Pavilion Partners’ plan will involve a conversion, the Pavilion’s status as an LWCF-encumbered public facility means that a formal environmental assessment of the project must be completed under the National Environmental Policy Act (NEPA), Kelly Pearce of the NPS Midwest Regional Office told the Tribune.

That assessment has commenced but is now “on hold” pending the outcome of discussions between the DNR and NPS on whether the project will trigger a conversion, DNR Director of Communications Phil Bloom told the Tribune. “Once NPS determines the appropriate action to take, whether it’s a (public facility designation or a conversion), the DNR is subject to completing the NEPA process and submitting a complete proposal package to the National Park Service for approval. NEPA steps include two 15-day notices prior to a public hearing, followed by a 30-day comment period.”

DNR Timeline

The DNR is hopeful that the renovated Pavilion will open in 2017 and the banquet center in 2018, Bloom said.


Posted 7/28/2016





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