Transport of aquatic invasive species to and from Department boat launches.
Purpose:
To prevent boats carrying visible invasive species from launching at DEC facilities or leaving these facilities.
Text of proposed rule:
A new section 59.4 is adopted to read as follows:
Section 59.4
Aquatic Invasive Species Control at State Boat Launching and Fishing Access Sites
The regulations in this section apply to all sites from which a watercraft can be launched that are under the jurisdiction of the New York State Department of Environmental Conservation and administered by the Division of Fish, Wildlife and Marine Resources.
(a) Purpose. The purpose of this section is to provide regulations that restrict the transport of plants and animals to and from state boating and fishing access facilities administered by the Division of Fish, Wildlife and Marine Resources to limit the spread of aquatic invasive species.
(b) Prohibitions.
1. No person shall launch, or attempt to launch a watercraft from a state boat launching site, a fishing access site, or any other site from which a watercraft may be launched, or leave from these sites with any plant or animal, or parts thereof, visible to the human eye, in, on, or attached to any part of the watercraft, including livewells and bilges, the motor, rudder, anchor or other appurtenants; any equipment or gear; or the trailer or any other device used to transport or launch a watercraft that may come into contact with the water, unless a written permit is obtained from the department.
2. No person shall launch, or attempt to launch a watercraft from a state boat launching site, a fishing access site, or any other site from which a watercraft may be launched, or leave from these sites without draining the watercraft, including bilge areas, livewells, bait wells and ballast tanks, unless a written permit is obtained from the department.
(c) Exceptions.
The provisions of this section shall not apply to:
(1) Plants not otherwise defined in law or regulation as invasive species affixed to or transported in watercraft for use as camouflage for hunting or wildlife viewing purposes.
(2) Bait, including baitfish, that can legally be used on a waterbody and is possessed consistent with all applicable law and regulations.
(3) Legally taken game as defined in section 11-0103(2) of the Environmental Conservation Law or fish as defined in section 11-0103(1)(a).
(4) The use of plants or animals for habitat restoration, weed control, scientific research, aquaculture, or other activity approved by the department, consistent with all applicable laws and regulations related to their use, possession or harvest.
(d) Definitions
As used in this section, the following terms have the following meanings:
(1) Animal includes every living and non-living creature except a human being, dog or other companion animal as defined in section 350 of the Agriculture and Markets Law.
(2) Watercraft includes every motorized or non-motorized boat or vehicle capable of being used or operated as a means of transportation or recreation in or on water.
(3) Launch means to place a watercraft into a waterbody for any purpose and any activity that takes place within fifty feet of the high water mark of the waterbody for the purpose of placing a watercraft into a waterbody, including moving by trailer or other device or carrying by hand a watercraft toward the waterbody, or entering a queue prior to launching.
Title 6 NYCRR Section 190.24 is amended to read as follows:
Section 190.24
BOAT LAUNCHING SITES AND OTHER SITES FROM WHICH A WATERCRAFT MAY BE LAUNCHED
(a) Applicability.
The following regulations in this section apply to all sites from which a watercraft may be launched that are under the jurisdiction of the New York State Department of Environmental Conservation and administered by the Division of Lands and Forests, or the Division of Operations, or both.
(b) Prohibitions.
[(a)] (1) No person shall use any boat launching site or any adjacent waters within 100 feet from the shore of a boat launching ramp or ramp area, including offshore and inshore approaches, for any purpose other than the launching, retrieval, hauling or loading of boats, fishing and, where provided, ice fishing access, unless a written permit is obtained from the department. Fishing, or other permitted non-boating use of these facilities, may in no way impair the launching or retrieval of boats, use of boarding docks by boaters, or navigation to and from the launch ramp.
[(b)] (2) No person shall moor, dock, beach, leave, abandon or park any boat, auto trailer, float, raft or vehicle of any type for more than 24 hours at any boat launching site, and no vehicle except one used in loading and unloading or launching a boat shall be left or parked within such area at any time.
[(c)] (3) No person shall erect or maintain a camp, tent or structure of any kind at a boat launching site.
[(d)] (4) No person shall conduct any business, buy, sell, offer or expose for sale, hire, lease or vend any article or merchandise of any kind at a boat launching site.
[(e)] (5) No person shall kindle, build, maintain or use a fire, except in an area provided for that purpose.
[(f)] (6) No person shall erect or post any sign or notice, except as permitted by the department.
[(g)] (7) No person shall dispose of any garbage, sewage, metal or glass containers, refuse, waste, fruit, vegetable, foodstuffs, paper or other litter, except in receptacles when provided for such purposes.
[(h)] (8) No person shall injure, deface, disturb or befoul any part of an area or building, sign, equipment or other property found thereon, nor shall any tree, flower, fern, shrub, rock or other plant or mineral be removed, injured or destroyed.
[(i)] (9) No person shall use threatening, abusive or insulting language; perform any obscene or indecent act; throw stones or other missiles; interfere with, encumber, obstruct or render dangerous any drive, path, dock, beach or public place; do any act tending to or amounting to a breach of the peace; enter or leave, except at established entrances or exits; engage in, instigate, aid or encourage a contention or fight; or assault any person.
[(j)] (10) No person shall at any time fail to comply with the reasonable demand or directions of any authorized person in using access roads, parking areas or launching sites, or fail to comply with directions or signs.
(11) No person shall launch, or attempt to launch a watercraft from a state boat launching site, a fishing access site, or any other site from which a watercraft may be launched, or leave from these sites with any plant or animal, or parts thereof, visible to the human eye, in, on, or attached to any part of the watercraft, including livewells and bilges; the motor, rudder, anchor or other appurtenants; any equipment or gear; or the trailer or any other device used to transport or launch a watercraft that may come into contact with the water, unless a written permit is obtained from the department.
(12) No person shall launch, or attempt to launch a watercraft from a state boat launching site, a fishing access site, or any other site from which a watercraft may be launched, or leave from these sites without draining the watercraft, including bilge areas, livewells, bait wells and ballast tanks, unless a written permit is obtained from the department.
(c) Exceptions.
The provisions of this section shall not apply to:
(1) Plants not otherwise defined in law or regulation as invasive species affixed to or transported in watercraft for use as camouflage for hunting or wildlife viewing purposes.
(2) Bait, including baitfish, that can legally be used on a waterbody and is possessed consistent with all applicable laws and regulations.
(3) Legally taken game as defined in section 11-0103(2) of the Environmental Conservation Law or fish as defined in section 11-0103(1)(a).
(4) The use of plants or animals for habitat restoration, weed control, scientific research, aquaculture, or other activity approved by the department, consistent with all applicable laws and regulations related to their use, possession or harvest.
(d) Definitions
As used in this section, the following terms have the following meanings:
(1) Animal includes every living and non-living creature except a human being, dog or other companion animal as defined in section 350 of the Agriculture and Markets Law.
(2) Watercraft includes every motorized or non-motorized boat or vehicle capable of being used or operated as a means of transportation or recreation in or on water.
(3) Launch means to place a watercraft into a waterbody for any purpose and any activity that takes place within fifty feet of the high water mark of the waterbody for the purpose of placing a watercraft into a waterbody, including moving by trailer or other device or carrying by hand a watercraft toward the waterbody, or entering a queue prior to launching.
Text of proposed rule and any required statements and analyses may be obtained from:
Phil Hulbert, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8894, email: pxhulber@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority
The proposed amendments to 6 NYCRR Part 59 and section 190.24 seek to control the introduction and spread of invasive species by prohibiting the launching of watercraft from boat launch facilities and fishing access sites under the jurisdiction of the Department of Environmental Conservation (Department or DEC) unless they are drained and have no visible plant or animal life attached to the watercraft, trailer or associated equipment. Environmental Conservation Law (ECL) Section 3-0301(d) provides for the care, custody and control of the Forest Preserve. ECL Section 9-0105(1) gives the Department the power, duty and authority to exercise care, custody and control of State lands. ECL Section 9-1709(1) directs the Department of Environmental Conservation, in cooperation with the Department of Agriculture and Markets, to restrict the sale, purchase, possession, propagation, introduction, importation, transport and disposal of invasive species. ECL Section 11-0303(1) provides that the Fish and Wildlife Law vests in the Department the efficient management of the fish and wildlife resources of the State, including the maintenance and improvement of such resources as natural resources of the State and the development and administration of measures for making them accessible to the people of the State. ECL Section 11-0305(9) empowers the Department to manage and control public fishing areas. ECL Section 11-2101 empowers the Department to make regulations for the use of State-owned boat launching sites and State-owned boat-access sites. DEC is also empowered to guarantee the beneficial use of the environment without risk to health and safety (ECL Section 1-0101(3)(b)), promote and coordinate the management of water, land, fish, wildlife, and air resources (ECL Section (1)(b)), provide for the propagation, protection, and management of fish and other aquatic life and wildlife (ECL Section 3-0301(1)(c)), provide for the protection and management of marine and coastal resources and of wetlands, estuaries and shorelines (ECL Section 3-0301(1)(f)), promote control of weeds and aquatic growth, and develop methods of prevention and eradication assuring the preservation and enhancement of natural beauty and man-made scenic qualities (ECL Section 3-0301(1)(k)).
2. Legislative Objectives
ECL Section 9-1701 states the findings of the New York State Legislature concerning the threat that invasive species represent to the environment and economy of New York State. Specifically, the legislature found that invasive species are having a detrimental effect upon the State’s fresh and tidal wetlands, water bodies and waterways, forests, agricultural lands, meadows and grasslands, and other natural communities and systems by out-competing native species, diminishing biological diversity, altering community structure and, in some cases, changing ecosystem processes.
The proposed amendments to 6 NYCRR Part 59 and section 190.24 will provide a means by which DEC can control the transport of aquatic invasive species by watercraft, trailers and associated equipment used at DEC boat launches and fishing access sites. Watercraft, trailers and associated equipment are one of the primary pathways by which aquatic invasive species can be introduced from waterbody to waterbody. Currently, boaters and anglers are advised to follow clean, drain, dry protocols through various outreach mechanisms, but these measures are voluntary.
The proposed amendments to 6 NYCRR Part 59 and Section 190.24 will make the cleaning and draining of watercraft mandatory at DEC facilities by prohibiting the launching of watercraft from State lands or leaving these lands unless the watercraft is drained and no visible plant or animals are in it or attached to it. Due to the difficulty of removing zebra and quagga mussels from boat hulls, a special allowance will be granted by permit to individuals removing seasonally moored or docked watercraft from a zebra or quagga mussel infested waterbody at the completion of the boating season for cleaning at the location of storage. The proposed amendments will help DEC in its efforts to prevent further introduction and spread of aquatic invasive species transported between waterbodies in or on watercraft, trailers and associated equipment while allowing legitimate transport of watercraft from zebra or quagga mussel-infested waters to a storage location.
The proposed amendments to 6 NYCRR Part 59 and section 190.24 will complement the Department’s efforts to develop regulations for the sale, importation, purchase, transportation or introduction of invasive species under Title 17, ECL Article 9. While those regulations are primarily aimed at commercial pathways for invasive species introduction and spread, the amendments to 6 NYCRR Part 50 and section 190.24 address non-commercial transport of invasive species by recreational watercraft, trailers and associated equipment. The amendments will help control the introduction and spread into new waterbodies of invasive plants and animals that already exist in New York State.
3. Needs and Benefits
Watercraft, trailers and associated equipment are one of the primary transport mechanisms for aquatic invasive species. Unless this equipment is properly cleaned, drained or dried before it is used in a new waterbody, there is a high risk that aquatic invasive species can be introduced into that waterbody. Once introduced to a waterbody aquatic invasive species such as zebra mussel and Eurasian watermilfoil are extremely difficult or impossible to control or eliminate. Additionally, efforts to control or eliminate invasive species once established are costly and may not achieve the intended results. Populations of aquatic invasive species can grow to the point that they have a severe impact on recreational and commercial use of a waterbody. Excessive growth of aquatic invasive species can also substantially impact the tourism-based economies associated with these waterbodies. It has been estimated that the ecological damage and control costs associated with aquatic invasive species amount to over nine billion dollars annually in the U.S.
The proposed regulations will strengthen DEC’s ability to control the spread of aquatic invasive species associated with the use of watercraft, trailers and associated equipment at the boating and fishing access facilities it administers. Boaters are currently asked to voluntarily comply with recommended advice on how to prevent the spread of aquatic invasive species as provided in various DEC publications and posted at the 390 boat launch facilities that DEC administers. The proposed regulations will allow DEC law enforcement staff to ticket any user of DEC boat launch facilities that does not drain a watercraft and remove any visible plants and animals attached to it, the trailer or associated equipment prior to launching at or leaving the site. Per ECL 71-0923, the penalty for violating this regulation is imprisonment for not more than 15 days, or a fine of not more than $250, or both fine and imprisonment.
The proposed regulations will allow boaters keeping boats in zebra or quagga mussel infested waters to obtain a free permit from the Department allowing them to depart from a launch site without removing all visible material. Such a permit would allow boaters to take their boat to a storage location (e.g. at the end of a boating season) or to an off-site boat washing station. The permit is not intended to free boaters from the obligation to remove plant or animal material associated with short term use on a body of water.
4. Costs
No cost to DEC or local governments.
5. Local Government Mandates
These amendments of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.
6. Paperwork
No additional paperwork or record keeping will result from these proposed regulations, except for the free permit that will allow boaters to transport boats from zebra or quagga mussel infested waters to a storage location.
7. Duplication
There are no other State or Federal regulations which govern the transportation of aquatic invasive species associated with boats, trailers and associated equipment that apply to all DEC boat launch sites.
8. Alternatives
DEC considered not amending Part 59 or section 190.24. Without the amendments, however, DEC will continue to rely on voluntary compliance with outreach directives to reduce the spread of aquatic invasive species. This alternative would likely result in the slow but continual expansion of aquatic invasive species introduction in New York State. Development of regulations restricting the transport of aquatic invasive species was a recommendation of the NY Invasive Species Advisory Committee in its final report titled “New York State Invasive Species Advisory Committee Recommendations of the Aquatic Invasive Species Transport Law Ad-Hoc Workgroup” completed in early 2010.
DEC considered the implication of amending Part 59 and section 190.24 without any provision for allowing boaters to leave a launch or access site with visible plant or animal material attached to the watercraft and associated equipment. This alternative would be impractical because it would prevent boaters from legally leaving lakes that harbor zebra mussels, for example, at the end of a boating season when juvenile mussels will be attached to the hull, motor and other equipment that has been submerged for a prolonged period of time. Removal of zebra mussels can best be accomplished with high pressure hot water which is not provided at DEC boating access sites.
Finally, DEC could close boat launch and fishing access facilities. While this would reduce the likelihood of the introduction of aquatic invasive species via these specific access locations, it would also have a significant negative impact on fishing and boating related recreation, particularly important to rural economies. It is estimated that recreational boating and fishing results in $4.2 billion of economic activity in New York state annually.
9. Federal Standards
There are no federal standards that apply to the transport of aquatic invasive species in New York State.
10. Compliance Schedule
These regulations, if adopted, will become effective immediately. There is no time needed to enable regulated persons to achieve compliance with this rule.
Regulatory Flexibility Analysis
The purpose of this rule making is to amend the Department of Environmental Conservation’s (Department or DEC) regulations associated with State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas administered by the Division of Fish, Wildlife and Marine Resources (6 NYCRR Part 59) and with Boat Launching Sites administered by the Division of Lands and Forests and Division of Operations (6 NYCRR Section 190.24). The proposed amendments will prohibit persons with watercraft, trailers and associated equipment carrying visible plants and animals from launching at DEC facilities or leaving these facilities. It will also prohibit persons from launching at or leaving DEC facilities with watercraft that have not been properly drained of water. These amendments will help reduce the spread of aquatic invasive species via watercraft, trailers and associated equipment to and from waters DEC provides access to. Special allowance will be granted by permit to individuals removing seasonally moored or docked watercraft from a waterbody at the completion of the boating season for cleaning at the location of storage.
The Department has determined that the proposed rules will not impose an adverse impact as far as additional reporting, record-keeping, or other compliance requirements on small businesses or local governments. Watercraft owners and operators regulated by the proposed rule will have the ability to satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the rule is necessary to provide regulated entities with the ability to immediately comply with the rule.
The proposed amendment to 6 NYCRR Part 59 and section 190.24, by helping reduce the introduction and spread of aquatic invasive species by watercraft and trailers in New York State, will have a positive impact on water-based tourism. Prolific growth of aquatic invasive species can seriously impact tourism-based economies associated with waters throughout New York State.
Since the Department’s proposed rule making will not impose an adverse impact on small businesses or local governments, including no effect on current reporting, record-keeping, or other compliance requirements, the Department has concluded that a regulatory flexibility analysis is not required for this regulatory proposal.
Rural Area Flexibility Analysis
The purpose of this rule making is to amend the Department of Environmental Conservation’s (Department or DEC) regulations associated with State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas administered by the Division of Fish, Wildlife and Marine Resources (6 NYCRR Part 59) and with Boat Launching Sites administered by the Division of Lands and Forests and Division of Operations (6 NYCRR Section190.24). The proposed amendments will prohibit persons with watercraft, trailers and associated equipment carrying visible plants and animals from launching at DEC facilities or leaving these facilities. It will also prohibit persons from launching at or leaving DEC facilities with watercraft that have not been properly drained of water. As with the existing regulations under 6 NYCRR Part 59, these new regulations will be enforced through patrols of DEC boat launching facilities by DEC Law Enforcement personnel. These amendments will help reduce the spread of aquatic invasive species via watercraft, trailers and associated equipment to and from waters DEC provides access to. Special allowance will be granted by permit to individuals removing seasonally moored or docked boats from a waterbody at the completion of the boating season for cleaning at the location of storage.
The Department has determined that the proposed rules will not impose an adverse impact as far as additional reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Watercraft owners and operators regulated by the proposed rule will have the ability to satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the rule is necessary to provide regulated entities with the ability to immediately comply with the rule.
The proposed amendment to 6 NYCRR Part 59 and Section 190.24, by helping reduce the introduction and spread of aquatic invasive species by watercraft, trailers and associated equipment in New York State, will have a positive impact on rural water-based tourism. Prolific growth of aquatic invasive species can seriously impact tourism-based economies associated with waters in rural areas.
Since the Department’s proposed rule making will not impose an adverse impact on public or private entities in rural areas and will have little effect on current reporting, record-keeping, or other compliance requirements, the Department has concluded that a rural area flexibility analysis is not required for this regulatory proposal.
Job Impact Statement
The purpose of this rule making is to amend the Department of Environmental Conservation’s (Department or DEC) regulations associated with State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas administered by the Division of Fish, Wildlife and Marine Resources (6 NYCRR Part 59) and with Boat Launching Sites administered by the Division of Lands and Forests and Division of Operations (6 NYCRR Section 190.24). The proposed amendments will prohibit watercraft, trailers and associated equipment carrying visible plants and animals from launching at DEC facilities or leaving these facilities. It will also prohibit boats that have not been properly drained of water from launching at or leaving DEC facilities. These amendments will help reduce the spread of aquatic invasive species to waterbodies via watercraft, trailers and associated equipment.
Overall, the proposed regulations will not have an adverse impact on jobs or employment in New York State. Reducing the spread of aquatic invasive species and maintaining quality aquatic recreation opportunities in New York will have a positive impact on jobs associated with this form of recreation. The Department therefore concludes that a job impact statement is not required.
