PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of section 190.10(f) to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 1-0101(3)(b), 3-0301(1)(b), (2)(m), 9-0105(1) and (3)
Subject:
Henderson Shores Unique Area.
Purpose:
To protect public safety and natural resources on the Henderson Shores Unique Area.
Text of proposed rule:
A new subdivision (f) is added to 6 NYCRR section 190.10 to read as follows:
(f) Henderson Shores Unique Area. Description: For the purposes of this section, Henderson Shores Unique Area, referred to in this section as “the area“, means all those state lands located in Jefferson County in the Town of Henderson, on portions of lots 15, 16, 26, 27, 36 and 37, Black River Tract, Township #6, Constable’s Eleven Towns, Great Tract #5, Macomb’s Purchase.
(1) All camping shall be prohibited.
(2) The area shall be closed to public use between the hours of 10:00 pm and 5:00 am.
(3) All campfires are prohibited.
(4) No person shall possess glass containers.
Text of proposed rule and any required statements and analyses may be obtained from:
Keith Rivers, NYS DEC Region 6 Sub-office, 7327 State Route 812, Lowville, NY 13367, (315) 376-3521, email: rwrivers@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.
Additional matter required by statute:
A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.
Regulatory Impact Statement
1. Statutory authority
Environmental Conservation Law (“ECL”) section 1-0101(3)(b) directs the Department to guarantee “that the widest range of beneficial uses of the environment is attained without risk to health or safety, unnecessary degradation or other undesirable or unintentional consequences.” ECL section 3-0301(1)(b) gives the Department the responsibility to “promote and coordinate management of...land resources to assure their protection...and take into account the cumulative impact upon all such resources in...promulgating any impact upon all such resources...in promulgating any rule or regulation.” ECL section 9-0105(1) authorizes the Department of Environmental Conservation to "exercise care, custody, and control" of State lands. ECL section 3-0301(2)(m) authorizes the Department of Environmental Conservation (DEC) to adopt rules and regulations “as may be necessary, convenient or desirable to effectuate the purposes of (the ECL),” and ECL 9-0105(3) authorizes DEC to “make necessary rules and regulations to secure proper enforcement of (ECL Article 9).”
2. Legislative objectives
In adopting various articles of the ECL, the legislature has established forest, fish, and wildlife conservation to be policies of the State and has empowered DEC to exercise care, custody, and control over certain State lands and other real property. Consistent with these statutory interests, the proposed regulations will protect natural resources and the safety and welfare of those who engage in recreational activities on the Henderson Shores Unique Area. The Department also has been provided authority by the Legislature to manage State owned lands (see ECL section 9-0105(1), and to promulgate rules and regulations for the use of such lands (see ECL section 3-0301(2)(m) and ECL section 9-0105(3)).
3. Needs and benefits
The Henderson Shores Unique Area (“the Area”) located in the town of Henderson in Jefferson County was acquired in 1988 by the State because of its unique habitat. The unspoiled nature of Henderson Shores with its 3,700 feet of lake frontage along Lake Ontario, its deer wintering area, which is a significant habitat, as well as classified wetlands, is a very rare commodity in the eastern Lake Ontario basin. The 893 acre area consists of calcareous pavement barrens or an alvar which is a rare natural community that exists in very shallow soils over limestone bedrock. These areas are characterized by dramatic changes in moisture, ranging from very wet conditions in early spring and summer to very dry conditions the remainder of the year. This environment supports habitats for rare plants such as the yellow lady slipper, reindeer lichen, fragrant sumac and the cork elm, a threatened species, currently found on the Area. It is also habitat for threatened animals such as the whip-poor-will, upland sandpiper and black and white warbler. The limestone underlying the shallow soils, however, makes it extremely sensitive to overuse.
The Area was purchased with funds from the 1986 Environmental Quality Bond Act under the Unique Character category of the Open Space Plan. ECL Section 52-0101(h) defines “unique character” as “lands of special natural beauty, wilderness character, geological, ecological or historical significance suitable for the state nature and historic preserve and similar lands within a forest preserve county outside the Adirondack and Catskill parks.” Because of the uniqueness of this Area, the rating system score for this parcel, which is used to determine its eligibility for acquisition, was high in the categories of Natural Beauty and Ecological Significance. The project vulnerability rating was also high based upon potential adverse impact to the area within a two year period. The intent of the proposed regulations is to protect this sensitive Area while also providing for public use.
Pursuant to the authority provided by ECL Section 9-0105(1) to exercise “care, custody and control” of State lands, in 1989 the Department announced, through a press release, that no camping would be permitted on the Area until at least such time as a Unit Management Plan was developed. This was done to protect the fragile soils and vegetation. To facilitate a more “day use” of the property, rather than overnight camping, a gate was installed at the beginning of the Radar Road. Public use, therefore, was restricted to access by foot with the exception of persons holding a CP-3 permit (access for persons with disabilities) from the Department. Permit holders were permitted to drive the.7 miles of the Radar Road to reach the shoreline. However, the Department determined that the gate was unnecessarily restricting public access, therefore in an effort to provide better public access to the shoreline, the gate was removed around 2000. Camping on the Area was still prohibited by Department notice in the form of a sign at the access point on Radar Road. Despite this sign, illegal camping has been occurring on the Area since the gate was removed. Illegal roadways, to reach the best shoreline camping locations, have also developed. On these shallow soils a few passes by a vehicle creates a route that is evident for a long time and becomes established for others to use. Additionally, open fires, unsanitary conditions, littering and broken glass, especially along the rocky shoreline, have become environmental concerns and public safety issues. The proposed regulations, to prohibit overnight camping, open fires and glass containers, are intended to codify the Department’s current policy, provide greater public awareness of the rules and requirements for use of the Area, enhance the Department’s ability to enforce these rules and requirements, all of which should ultimately help protect the natural resources of the Area and improve public enjoyment of the recreational opportunities it provides.
A letter was distributed in February to interested parties explaining the intent of the proposed regulations. The distribution list included sportmen’s groups, State and non-profit agencies, local government, and interested members of the public. Very few responses were received. The majority of responses was supportive in nature or discussed concerns such as invasive plants, which were not the focus of the proposed regulations. There were some concerns regarding the prohibition of camping, however, since camping is currently prohibited by sign, there will be no change in use.
4. Costs
There will be no increased staffing, construction or compliance costs projected for State or local government or to private regulated parties as a result of this rulemaking. Costs to the Department will be minimal, approximately $500 for necessary signage.
5. 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.
6. Paperwork
The proposed regulations will not impose any reporting requirements or other paperwork on any private or public entity.
7. Duplication
There is no duplication, conflict, or overlap with State or Federal regulations.
8. Alternative approaches
The “No Action” alternative is not acceptable since unregulated use of the area would continue, resulting in degradation to the natural resources and associated negative impacts to users. Proposed public use restrictions could be implemented through the posting of signs, however, restrictive signs are routinely removed by the public. As a result, judges are hesitant to convict people for sign violations that are not backed up by specific regulations.
Restricting motor vehicle access from the town road to the lake shore would reduce some of the use and some of the potential impacts associated with that use, however, since the road is the only public access to the interior of the property, this alternative would not be desirable and would only be considered as a last resort.
9. Federal standard
There is no relevant Federal standard governing the use of State lands.
10. Compliance schedule
The regulations will become effective on the date of publication of the rulemaking in the New York State Register. No time is needed for regulated persons to achieve compliance with the regulations. Once the regulations are adopted they are effective immediately. The Department will educate the public about the regulations through information posted on the Departments’ web site.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with these regulations because the proposal will not impose any reporting, recordkeeping or other compliance requirements on small businesses or local governments.
Since there are no identified cost impacts for compliance with the proposed regulations on the part of small businesses and local governments, they will bear no economic impact as a result of this proposal. The proposed regulations relate solely to protecting public safety and natural resources on the Henderson Shores Unique Area.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this proposal because the proposal will not impose any reporting, record-keeping or other compliance requirements on rural areas. The proposed regulations relate solely to protecting public safety and natural resources on the Henderson Shores Unique Area.
Job Impact Statement
A Job Impact Statement is not submitted with this proposal because the proposal will have no substantial adverse impact on existing or future jobs and employment opportunities. The proposed regulations relate solely to protecting public safety and natural resources on the Henderson Shores Unique Area.
