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.
Conversion
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.