ENV-33-08-00004-A Addition of Specialized Regulations to Control Use on Stewart State Forest

10/22/08 N.Y. St. Reg. ENV-33-08-00004-A

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 43

October 22, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-33-08-00004-A

Filing No. 1000

Filing Date. Oct. 07, 2008

Effective Date. Oct. 22, 2008

Addition of Specialized Regulations to Control Use on Stewart State Forest

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Part 92 and addition of section 190.34 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101(3)(b), 3-0301(1)(b), 3-0301(2)(m) and 9-0105(1)

Subject:

Addition of specialized regulations to control use on Stewart State Forest.

Purpose:

To provide the department with control of the Stewart State Forest as public recreational demands on the area increase.

Text of final rule:

Repeal Part 92 and add a new section 190.34 to Title 6 of NYCRR to read as follows:

§ 190.34 Stewart State Forest.

In addition to other applicable general provisions of this Part, the following requirements apply to Stewart State Forest. In the event of a conflict, these specific requirements will control.

(a) Description. For the purposes of this section, Stewart State Forest means all those state lands lying and situated in the Towns of New Windsor, Montgomery, Hamptonburgh and the Village of Maybrook in Orange County and consisting of the State-owned lands designated by the department as State Reforestation Area Orange #4, Stewart State Forest.

(b) No person shall operate or possess a mechanically propelled vessel other than an electric powered vessel on any water body on the property.

(c) No person shall possess or discharge a rifle or handgun on the property, with the exception of.22 caliber rimfire handguns.

(d) Camping is by permit only and limited to designated sites. The permit must be obtained prior to set-up. Camping is prohibited from the first day of the early bowhunting season in the Southern Zone to the last day of the late muzzleloading and bowhunting season in the Southern Zone.

(e) No person shall operate or possess a snowmobile except:

(1) on trails designated and marked by the department as a "Snowmobile Trail" and only when the trail is completely covered with snow and/or ice; and

(2) on frozen lakes and ponds when access to same may be gained by public highways lawfully designated for snowmobile use, or by trails designated and marked by the department as a "Snowmobile Trail".

(f) No person shall kindle, build, maintain or use a fire except by permit from the Department.

(g) No person shall operate a motor vehicle on the property, except:

(1) persons possessing a permit for such use from the Department; or

(2) licensed hunters and trappers entering the area between one hour before sunrise and one hour after sunset for the purpose of hunting or trapping from October 1 to December 31, except when unsafe conditions prohibit such access; or

(3) adults accompanying youth pheasant hunters participating in the statewide youth pheasant hunt.

(h) From October 1 to December 31:

(1) Any person hunting must park their motor vehicle in a designated parking area and only then if the parking quota for that parking area is not filled.

(2) Hunters shall hunt only on the same side of the road as their vehicles are parked.

(3) Crossing of roads while hunting is prohibited.

(4) No person shall hunt or trespass in areas posted as restricted areas, except as permitted by the Department.

(i) No person shall enter Stewart State Forest during the Regular Hunting Season for deer as provided by Environmental Conservation Law section 11-0907, except for licensed hunters and trappers for the purpose of hunting or trapping or by permit from the Department.

(j) No person shall enter Stewart State Forest during the first two days of the Regular Hunting Season for deer without obtaining a reservation from the Department prior to entrance.

Final rule as compared with last published rule:

Nonsubstantial changes were made in section 190.34(j).

Text of rule and any required statements and analyses may be obtained from:

Robert Messenger, Department of Environmental Conservation, Bureau of State Land Management, 625 Broadway, Albany, NY 12233-4255, [phone], email: [e-mail]

Additional matter required by statute:

A Negative Declaration has been prepared in compliance with Article 8 of the ECL.

Revised Regulatory Impact Statement

1. Statutory Authority

The Environmental Conservation Law (ECL) provides statutory authority for guaranteeing beneficial use of the environment without risk to health and safety (ECL Section 1-0101(3)(b)); promoting and coordinating the management of lands (ECL Section 3-0301(1)(b)); adopting rules and regulations (ECL Section 3-0301(2)(m)); and exercising care, custody, control of reforestation areas(ECL Section 9-0105(1)).

2. Legislative Objectives

By repealing the current provisions of 6 NYCRR Part 92 ("Part 92") and adding a new Section 190.34 to 6 NYCRR Part 190 ("Section 190.34"), public use restrictions on the property will be lessened, thereby furthering the fulfillment of the legislative objective of the ECL to guarantee that the "widest range of beneficial uses of the environment is attained without risk to health or safety" (ECL Section 1-0101(3)(b)).

Part 92 prohibits non-hunters from using the property from the beginning of small game hunting season until the end of big game season; proposed Section 190.34 will allow non-hunters to use the property from the beginning of small game hunting season until the beginning of big game hunting season. Part 92 prohibits fishing on certain waters within the property and prohibits the use of boats on Wilkins, Rowe's and Maroney's ponds; proposed Section 190.34 will allow fishing and the use electric and human powered boats on all waters within the property. Part 92 does not allow camping or the building of campfires on the property; proposed Section 190.34 will allow camping and campfires at designated sites under permit from the department. Part 92 prohibits hunting parties larger than three people and the use of more than two dogs while hunting; these provisions will be repealed and not replaced. Part 92 prohibits the possession and use of handguns on the property; proposed Section 190.34 will allow only the possession and use of.22 caliber rimfire handguns.

3. Needs and Benefits

The Department's regulations regarding Stewart State Forest located in Orange County need to be updated to eliminate the overlap between existing Parts 92 and 190 of 6 NYCRR, to reflect the fact that additional lands have been incorporated into the property, and to reflect this area's new name and revised land use classification from what was a Fish and Wildlife Cooperator Area (which was managed as a wildlife management area) to a State Forest. Public use of State Forests (also known as Reforestation Areas), is governed by Article 9 of the ECL whereas Cooperator Areas are governed by Article 11 of the ECL. Historically, the Department managed this area through a cooperative agreement with the Department of Transportation (DOT). In 2006, jurisdiction over the remaining acreage was transferred to the Department. In the past, Part 92 governed public use of the area, then known as the Stewart Airport Cooperator Area, which has since become Stewart State Forest. The lands that were transferred to DEC jurisdiction are actually larger than the area that was constituted the Cooperator Area, and therefore the boundary description in Part 92 is no longer accurate. The boundary description in the proposed rule reflects this change.

Currently, Part 190 relating to public use of state lands applies to this area; however, specialized regulations are necessary given the unique history of public use of this area for hunting and fishing. In addition, now that the area is managed as a State Forest, a specialized regulation is needed to address potential user conflicts due to the increasing public recreational demands for snowmobiling, camping, boating, and hiking unique to this State Forest. Stewart State Forest is approximately 6,700 acres in size, and is the largest parcel of state land in Orange County, the fastest growing county in the State. Consequently, there is a high demand for public recreational use of the property. Proposed Section 190.34 will actually reduce the public use restrictions of Part 92, and will allow for more public use throughout the year. Only a select few of the Part 92 restrictions will be retained in the proposed regulation. Finally, the proposed regulation will address public safety issues related to the property's proximity to Stewart Airport.

The Stewart State Forest Unit Management Plan (UMP), approved on December 19, 2006, set forth the underlying reasons for this proposed regulation and was subject to public comment in the Fall of 2006. Proposed Section 190.34 reflects the management actions and needed regulatory amendments discussed in the UMP. Public comment was received at two public meetings on October 26, 2006 and a subsequent 30 day comment period. Public comments in their entirety are on file in the Region 3 DEC Lands and Forests office.

Public comment received in connection with the UMP was considered in drafting this proposed regulation, with hunter access to the property being extended to "one hour after sunset," and the property now being left open for hunters through December 31. A total of forty-five public comments and several petitions were received supporting the continued use of snowmobiles, while thirteen comments were received opposing the use of snowmobiles. The original proposal, which did not allow snowmobiles on the property, was changed to allow snowmobiles and is reflected in the proposed regulation.

ATVs and other off-road vehicles are different from snowmobiles since they do not have the protective cover of snow to buffer their effects on the trail surface. The DEC stands by the guidelines prohibiting ATV's presented in the UMP; thus, ATV's will be prohibited on the property.

This proposed rulemaking has three purposes, the first of which is updating the regulations to reflect the area's new designation as a State Forest by clarifying the rules for public use of the area.

The second purpose is to allow the Division of Lands and Forests to continue to manage and balance recreational uses consistent with past management under Part 92, by restricting the operation of snowmobiles to designated trails, prohibiting all but electric and human powered vessels on all waters, requiring permits for camping and fires, prohibiting rifles and handguns except.22 caliber rimfire handguns, and limiting the use of motor vehicles on the property. Twenty-two caliber rimfire handguns are commonly used by trappers to quickly and humanely dispatch animals in their traps. Shotguns have a shorter effective range than rifles, and do not pose a significant threat to the safety of adjacent landowners or the airport, and therefore will not be prohibited under the proposed rule. Also, the proposed restrictions on motor vehicle access and campfires at the Stewart State Forest will protect the nearby airport property.

The third purpose is to continue the management of a safe and high quality hunting experience as created under Part 92, by continuing to limit non-hunter use during the Regular Hunting Season for deer, allowing hunters to enter the property by motor vehicles from October 1 through December 31, continuing a limited reservation system around the first weekend of the Regular Hunting Season for deer, and continuing existing guidelines for hunter use of the property.

This "special regulation" is needed because its unique restrictions are not provided for in Part 190 at this time. In addition, the proposed regulation will allow for more access to the property by the general public in October and November by removing existing hunting provisions which are deemed unnecessarily restrictive to non-hunter use of the property.

Changes to existing regulations reflected in the proposed Section 190.34 are as follows:

(1) The use of boats is prohibited on Wilkins Pond and Rowe's Pond under Part 92. Under the proposed regulation the use of electric and human powered vessels will be permitted on all waters, but gasoline-powered motors will be prohibited;

(2) The use of rifles and handguns continues to be prohibited as in Part 92, but an exception will be made for.22 caliber rimfire handguns;

(3) Camping, prohibited under Part 92, will be permitted under the proposed regulation, but by permit only and limited to designated sites. Camping will be prohibited from early bowhunting season in the Southern Zone to the last day of the late muzzleloading/bowhunting season in the Southern Zone;

(4) Although snowmobile use is currently allowed everywhere on the property that use will be limited to designated trails and frozen water;

(5) Fires are currently prohibited under Part 92, but will be allowed by permit under the proposed regulation;

(6) Access to the property for hunting will be expanded from one-half hour before sunrise and after sunset to one hour before sunrise and after sunset; and

(7) A special permit is required under Part 92 for hunter use of the area. This special permit will be replaced with a reservation requirement limited to just the first two days of the Regular Hunting Season for deer.

The "no action" alternative is not acceptable due to the overlap of existing regulations and management issues which are not addressed by the current rules, and the change in jurisdiction and management of the property from a Fish and Wildlife Cooperator Area to a Reforestation Area. The regulatory overlap causes confusion and unnecessary regulation of users on the property. The option of repealing Part 92 without changing Part 190 is not acceptable for the same reasons.

4. Costs

These changes clarify and codify existing practices, replacing for the most part existing regulations which no longer apply because of the transfer of the land making up Stewart State Forest from DOT (governed by a Cooperative Hunting Area agreement, Part 92) to the DEC (governed by State land regulations, Part 190). If anything, financial costs and staff time may be reduced by these changes. Property taxes are already being paid on the property, and will not change as a result of the proposed rule. Law enforcement staff already patrol the property to enforce existing rules and regulations. Staff time for this purpose will not change as a result of the proposed rule. Printed materials such as signs and brochures educating the public about the use of state lands will be produced as part of the approved UMP. The proposed rule will not affect the cost of producing them. Consequently, there are no direct financial impacts attributable to the rule change. The potential cost impact is expected to be negligible.

(a) Costs to State Government

There are no costs projected for state government.

(b) Costs to Local Governments

There are no costs projected for local government. No local governments will be required to take any action as a result of the proposed rule (See Local Government Mandates below).

(c) Costs to Private Regulated Parties

There are no costs projected for private regulated parties. The proposed rule does not require any fee to be paid for camping permits or hunting reservations.

(d) Costs to the Regulating Agency

There are no costs projected for the Regulating Agency.

5. Paperwork

The Department of Environmental Conservation must issue camping permits for State lands as part of its programs. These permit issuance requirements already exist. There will be no other new reporting, or monitoring requirements, and no new forms and other paperwork, as a result of the proposed changes.

6. Local Government Mandates

This proposal will not impose any program, service, duty or responsibility upon any county, city, town, village, school district or fire district.

7. Duplication

The only relevant state rules are 6 NYCRR Part 92, which is being repealed in its entirety, and 6 NYCRR Part 190, which is proposed to be modified; there is no relevant state or federal rule which adequately protects the environment, health and safety of Stewart State Forest, so there is no duplication, overlap, or conflict with state or federal rules. The purpose of these changes is to eliminate overlap and conflicts between existing Parts 92 and 190, and to clarify management issues/practices that are currently not addressed by existing regulations.

The proposed changes will eliminate management guidelines for the Stewart Airport Cooperator Area since the property is now a State Reforestation Area. Simultaneously, only the necessary management guidelines have been incorporated into proposed Section 190.34. This proposed regulation is needed to manage an area with unique characteristics for a State Forest located in a relatively densely populated area experiencing rapid growth, adjacent to a major airport, and experiencing heavy recreational use.

8. Alternative Approaches

The alternatives to the proposed action are the "no action" option, or "repeal Part 92 without changes to Part 190" option, which are discussed in detail in Section 3. "Needs and Benefits," above.

9. Federal Standard

There is no relevant federal standard governing the use/management of Stewart State Forest.

10. Compliance Schedule

The proposed rule changes will become effective on the date of filing, with a target date of August 30, 2008, preceding the Fall 2008 hunting season.

Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, Job Impact Statement

The statements for the Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and the Job Impact Statement that were published with the proposed regulation were not changed because no substantive revisions were made to the express terms.

Assessment of Public Comment

Comment:

Why isn't Stewart State Forest a shotgun/handgun area as other parts of the State?

Response:

Shotguns are allowed at Stewart State Forest, along with.22 caliber rimfire handguns. Both.22 caliber rimfire handguns and shotguns have a limited effective range (are relatively low powered). These guns have a shorter effective range than rifles and do not pose a significant threat to the safety of adjacent landowners or the airport. Twenty-two caliber rimfire handguns are commonly used by trappers to humanely dispatch animals in their traps. The proximity of the airport to the State Forest poses a safety concern in regards to larger caliber handguns, and therefore they will not be allowed to be used on Stewart State Forest.

Comment:

Twenty-two caliber rimfire handguns are illegal during big game hunting season.

Response:

Twenty-two caliber rimfire handguns may legally be carried during the regular big game season. They may not be carried during special big game seasons (archery and muzzleloading) while the person carrying them is in the pursuit of deer or bear. Handguns may be legally carried during archery and muzzleloading seasons if the person carrying them is not hunting big game. (See ECL Section 11-0931, subsection 6).

Comment:

Commenter would like to see the parking areas increased to two cars in many areas as access permits.

Response:

The parking areas and quotas currently in place are based on years of experience and safe hunting at Stewart, with the goal of dispersing the hunters to allow for a quality hunting experience. The regulations as worded allow some discretion in changing the parking quotas for some lots should the need arise and safe hunting continues to be assured.

Comment:

Speed limit should be 15 mph. (2 comments)

Response:

The official vehicle speed limit for the property is 25 miles per hour and has been in effect since the property was transferred to DEC as a State Forest. No specific speed limit was set under Part 92 under the previous Cooperative Hunting Area Regulations; maximum speed limit for truck trails or roads maintained by the Department of Environmental Conservation (in 6 NYCRR Part 190, Section 190.8(k)) is set at 25 mph. The Department feels that the current speed limitation is appropriate for maintaining safe conditions at Stewart State Forest, but will consider specific signage, if deemed necessary due to special area conditions.

Comment:

Road speeds should not be 55 mph(2 comments) and speeds of 25 mph on trails that have limited visibility, and are used by snowshoers and hikers, are too high and too dangerous. (1 comment received viewing the 55 mph as appropriate).

Response:

The 55 mph road speed applies only to snowmobiles on the main roadways at Stewart State Forest and is based on Parks, Recreation and Historic Preservation Law, Section 25.03: Operations of snowmobiles, general. This statewide law makes it unlawful for snowmobiles to be operated "At a rate of speed greater than reasonable or proper under the surrounding circumstances provided, however, that in no case shall a snowmobile be operated at a speed in excess of fifty-five miles per hour upon public trails or land..." This law sets a maximum speed limit of fifty-five miles per hour. Lower speeds are called for in the Stewart State Forest Unit Management Plan for all snowmobile connector trails. Sections of these connector trails may be posted with warning signs and lower speeds where appropriate. The Department may consider special regulations establishing lower speed limits on certain trails in the future if deemed appropriate and necessary.

Comment:

Do user groups need a permit to access the property? (3 comments)

Response:

The general public, using the property as individuals or small groups do not need a permit to access the property. Larger groups undertaking competitive or organized events are required to obtain a permit from the department. The conditions of the permit designate the area(s) where the permittee is allowed to conduct their activities. The existing Temporary Revocable Permit (TRP) process will be utilized to review larger group events held on the property, as has been Department policy and procedure since we have owned the property.

Comment:

Electric boats should not be allowed on the ponds.

Response:

Fishing is a traditional outdoor recreational pursuit enjoyed on State Forest lands, and a use that the Department encourages. Electric motors are quiet and generally low-powered, thus very unlikely to cause any more disturbance to wildlife than human-powered watercraft.

Comment:

The Department should notify the public of events occurring on the property. (1 comment)

Response:

The Department does post an event calendar on the kiosks and does require TRP permit holders to post information about their events.

Comment:

The use of boats and kayaks should be governed by permit.

Response:

Use of small boats on small ponds tends to be somewhat self-limiting. If someone is already using a pond, other users will seek other waters. However, if the use of the ponds on the property becomes high enough that user conflicts are caused, the department may consider implementing a permit system.

Comment: There should be one north/south road for skiing only.

Response: As proposed in the UMP, there are at least 10 miles of trails that are open for cross-country skiing but not open to snowmobiles. The configuration of trails and uses allowed on those trails was decided during the UMP process, and involved extensive public involvement. The roads on the property are important for access to all users, and are wide enough to accommodate skiers and snowmobiles.