Operation of mechanically propelled vessels and aircraft in the forest preserve.
Purpose:
To authorize an interim permit system that sets limits on the time and frequency of flights to Lows Lake until December 31, 2011.
Text of proposed rule:
Subdivision (d) of Section 196.4 of 6 NYCRR is amended to read as follows:
(d) Lows Lake
(1) It is unlawful for any person to possess or operate mechanically propelled vessels on Lows Lake, located in the Town of Long Lake, Hamilton County and the Towns of Clifton and Colton, St. Lawrence County, including those expanses of water connected to the main body of Lows Lake, commonly known as Grass Pond, located in the Town of Clifton in St. Lawrence County, and Tomar Pond, located in the Town of Long Lake, Hamilton County. Nothing herein shall prohibit littoral landowners on Lows Lake, or guests of such littoral landowners, from possessing or operating a mechanically propelled vessel on such water bodies.
(2) It is unlawful for any operator of a commercial float plane to land on or takeoff from Lows Lake except by permit from the Department as provided in paragraphs (4) and (5).
(3) Definitions. As used herein, the terms set forth below shall have the following meanings:
(i) "operator of a commercial float plane" shall mean a person engaged in the business of operating a float plane for private revenue, including any person operating a float plane as an employee or contractor of such business.
(ii) "flight" shall mean a single occasion of landing and taking off.
(iii) "flying season" shall mean May 1 through November 30.
(iv) "permit" shall mean a Temporary Revocable Permit issued by the Department pursuant to Article 9 of the Environmental Conservation Law.
(4) Permits.
(i) Commercial float plane operators can obtain an application for a permit to fly into Lows Lake by contacting the person listed below:
Regional Forester
New York State Department of Environmental Conservation
Region 6
317 Washington Street, Watertown, NY 13601
(315) 785-2610.
(ii) Permit applications shall be submitted to the contact person listed above at least thirty (30) days prior to commencement of the flying season.
(iii) Permits issued by the Department pursuant to this subdivision shall be effective for a single flying season and shall expire at the conclusion of that flying season.
(5) Permit conditions. Each permit issued by the Department shall be subject to the following conditions:
(i) The maximum number of flights by all commercial float plane operators combined into Lows Lake shall not exceed one hundred sixty-five (165) flights in any single flying season.
(ii) The maximum number of flights by all commercial float plane operators combined into Lows Lake shall not exceed thirty-five (35) flights in any single calendar month.
(iii) It is unlawful for any commercial float plane operator to store canoes or other equipment on Forest Preserve lands at Lows Lake.
(iv) Within thirty (30) days after the conclusion of the flying season, each commercial float plane operator possessing a permit for access to Lows Lake shall provide the Department with copies of flight records for all flights to Lows Lake for that season by delivering or mailing such records to:
Regional Forester
New York State Department of Environmental Conservation
Region 6
317 Washington Street, Watertown, NY 13601
(315) 785-2610
(6) This subdivision (d) shall expire on December 31, 2011.
A new subdivision (e) of 6 NYCRR Section 196.4 is added to read as follows:
(e) It is unlawful for any person to possess or operate mechanically propelled vessels or aircraft on Lows Lake, located in the Town of Long Lake, Hamilton County and the Towns of Clifton and Colton, St. Lawrence County, including those expanses of water connected to the main body of Lows Lake, commonly known as Grass Pond, located in the Town of Clifton, St. Lawrence County, and Tomar Pond, located in the Town of Long Lake, Hamilton County. Nothing herein shall prohibit littoral landowners on Lows Lake, or guests of such littoral landowners, from possessing or operating a mechanically propelled vessel or aircraft on such water bodies. This subdivision shall become effective on January 1, 2012.
Text of proposed rule and any required statements and analyses may be obtained from:
Peter J. Frank, Bureau of Forest Preserve Management, NYS DEC, 625 Broadway, Albany, NY 12233-4254, (518) 473-9518, email: lfadk@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:
This regulatory action is part of the Bog River Final Supplemental EIS which is in compliance with article 8 of the ECL.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
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)), preserving the unique qualities of the Adirondack Forest Preserve (ECL Section 1-0101(3)(d)), promoting and coordinating management of land resources to assure their protection (ECL Section 3-0301(1)(b)), adopting rules and regulations (ECL Section 3-0301(2)(m)), providing for the care, custody, and control of the Forest Preserve (ECL Section 3-0301(1)(d)) and 9-0105(1)), and managing the real property under the jurisdiction of the Department for the purpose of preserving, protecting and enhancing the natural resource value for which the property was acquired or dedicated (ECL Section 3-0301(2)(v)). Furthermore, Executive Law Section 816(3) authorizes the Department to adopt rules and regulations necessary, convenient or desirable to effectuate management planning responsibilities for State lands in the Adirondack Park. Finally, the New York State Constitution, Article XIV, Section 1 mandates that the Forest Preserve be forever kept as wild forest lands.
2. Legislative Objectives
The permit requirement for operators of commercial float planes to land on or take off from Lows Lake and the eventual prohibition of aircraft on Lows Lake effective on January 1, 2012 will contribute to the fulfillment of the legislative objective for the care, custody, and control of the Adirondack Forest Preserve. This permit requirement and eventual ban on float planes will enable the Department to fulfill its statutory obligation to preserve, protect and enhance the natural resource value for which Lows Lake was acquired. Executive Law Section 816 requires that a Master Plan be developed by the Adirondack Park Agency (APA) in consultation with the Department for the management of State Lands in the Adirondack Park. The Adirondack Park State Land Master Plan (Master Plan or APSLMP) provides for the goal of creating a wilderness canoe route "without motorboat or airplane usage" through Lows Lake. This rulemaking will contribute to fulfill this Master Plan goal and in turn the legislative and constitutional objectives for preserving and protecting the State lands in the Adirondack Park.
3. Needs and Benefits
As noted above, this regulation is necessary to effectuate the Master Plan's management goal of establishing a wilderness canoe route from Hitchens Pond to the Five Ponds Wilderness: "Preservation of the wild character of this canoe route without motorboat or airplane usage...is the primary management goal for this primitive area." The decision to promulgate this regulation was the result of the 2009 Amendment/SEIS to the 2002 Bog River Complex the Unit Management Plan/Environmental Impact Statement (2002 Bog River UMP). This UMP process involved extensive public outreach and public comment, considered a wide range of alternatives and permit conditions to avoid potential adverse impacts to the resource and impacts to paddlers. The permit conditions to be implemented through this regulation include: (1) limiting the number of flights on an annual and monthly basis; (2) prohibiting the storage of canoes or other equipment on Forest Preserve lands; and (3) reporting of flight records relating to Lows Lake by operators of commercial float planes. This flight cap and prohibition on the storage will minimize potential adverse impacts resulting from the operation of float plants to paddlers and wildlife pending the implementation of the ban on all aircraft on January 1, 2012. The reporting requirement will allow the Department to monitor permit compliance. In conclusion, the permit conditions will protect the resource and minimize user conflicts during the period leading up to the eventual ban on aircraft into Lows Lake, which is necessary to achieve the management goals of the Master Plan of creating a wilderness canoe route "without motorboat or airplane usage" through Lows Lake. The additional period of access to Lows Lake will provide a benefit to the commercial float plane operators, and it is expected that they will use the extra time to prepare for and adjust to the eventual ban. By letter dated March 31, 2009, the two commercial float plane operators, together with local government officials from the towns of Long Lake and Inlet and Hamilton County expressed support for this amendment. Furthermore, the letter expressed the commitment of the two float plane operators to voluntarily abide by the conditions and restrictions set forth in this amendment pending promulgation of this regulation.
4. Costs
(a) Costs to State Government
There will be some administrative costs to the Department in administering and monitoring the permit system, and providing a summary report to APA. However, there are no administrative costs for other state agencies or state government in general, because with the exception noted above, this regulation imposes no requirements on State government.
(b) Costs to Local Governments
There are no local government mandates or costs related to this regulation.
(c) Costs to Private Regulated Parties
This permit system established in this regulation will alleviate the economic impact to commercial float plane operators as a result of the eventual closure of Lows Lake to aircraft. The interim permit system should not have any significant economic impact on these businesses, because: (1) float plane operators already are required to maintain flight records as part of their pilot license; and (2) the annual and monthly cap seeks to maintain past use levels by commercial float plane operators, although it does represent a reduction of flights during peak paddling season (July 1 through September). The prohibition on the storage of canoes or other equipment on Forest Preserve Lands may result in a cost of depleting monthly flight allocations used for transport of canoes and equipment rather than clients, or potential costs of finding alternative storage locations on private lands.
As stated in the 2009 Amendment/SEIS, there are two commercial float plane operators who currently fly customers into Lows Lake: Helms Aero Service (Helms) based in Long Lake, and Payne Air Service (Payne) based in Inlet. These are the last two commercial float plane operators in the Adirondack Park (at one time there were seven commercial float plane businesses in the Park). At the Department's request, Helms and Payne provided information concerning the economic value of Lows Lake flights to their businesses, as well as flight data detailing the number of trips (by date) that Helms and Payne made into Lows Lake during a three year period: 2005-2007 (Appendix A of the 2009 Amendment/SEIS).
By way of background, Helms and Payne noted that prior to adoption of the APSLMP, approximately 50 remote lakes were available for float plane access. In 1972, Helms made 625 trips to 23 lakes, all of which were subsequently closed to float plane access following adoption of the APSLMP. Helms and Payne state that approximately 15 remote lakes are used by their services today, of which 7 or 8 receive the bulk of activity. Helms states that the number of woods trips (flying to remote lakes) has declined approximately 40% from the 1972 level.
Today, woods trips constitute approximately 35-40% of gross revenues for Helms. Trips to Lows Lake comprise approximately 20% of woods trips, but due to rate schedules contribute about 30% of woods trip revenues. Moreover, due to other considerations affecting efficiency, Helms estimates that Lows Lake flights constitute over 40% of woods trips profits after hard expenses (e.g., gas, maintenance, etc.). Payne makes fewer woods trips overall than Helms, and trips to Lows Lake therefore comprise a larger proportion of Payne's woods trips. Helms and Payne state that "Lows Lake is, by a large margin, the most important lake to our economic health. . . and it is irreplaceable because of its quality as a bass fishery and its suitability for float plane operation."
Based on the flight data provided by Helms and Payne, it is clear that the busiest season for float planes going to Lows Lake coincides with peak paddling season (July 1 through September 30). The data for trips by Helms and Payne to Lows Lake for the three year period 2005-2007 can be summarized as follows:
Month
Avg. Trips Flown
Avg. Days Flown
May
7
4
June
21
9
July
40
13
August
45
14
September
40
13
October
17
5
November
2
1
It is expected that commercial float plane operators will take advantage of this additional period of access to Lows Lake to make whatever preparations or adjustments may be necessary in order to adapt to the eventual closure of the Lake to float planes. The Department and the APA are committed to working with float plane operators to evaluate current and potential opportunities for the use of float planes in the Adirondack Park beside Lows Lake.
In an letter dated April 2, 2009 to DEC and the APA, the commercial float plane operators supported the regulatory permit approach proposed in the 2009 Amendment/SEIS.
5. Local Government Mandates
This proposal will not impose any program, service, duty nor responsibility upon any county, city, town, village, school district or fire district.
6. Paperwork
There will be new reporting and monitoring requirements associated with this regulation for both the Department and the commercial float plane operators who will be required to submit a copy of flight records to the Department which will monitor the annual permit system for compliance and in turn submit a summary report to the APA.
7. Duplication
The only relevant state rule is 6 NYCRR Part 196 which is proposed to be modified; there is no relevant federal rule which applies to Forest Preserve lands; consequently, there is no duplication, overlap, nor conflict with State or Federal rules.
8. Alternatives
The 2002 Bog River UMP evaluated five management alternatives for float plane access on Lows Lake: (1) elimination (by regulation) of public float plane use on Lows Lake within five years (Alternative A); (2) developing voluntary guidelines limiting timing, frequency and location of float plane access (Alternative B); (3) establishing (by regulation) zones on the lake where float plane use would be prohibited, while allowing other areas to continue to be used (Alternative C); (4) purchasing all in-holdings and then prohibiting float plane access (Alternative D); and (5) allowing the status quo to continue ("no action" or Alternative E). However, at that time, the Department did not consider the alternative adopted in the 2009 Amendment/SEIS to be implemented through this regulation of allowing float plane use to continue for a limited period subject to a mandatory permit system.
Alternative A, which was selected as the preferred alternative in the 2002 Bog River UMP, required the Department to promulgate regulations prohibiting public float plane access to Lows Lake within five years from the date the UMP was adopted. This alternative also required the Department to attempt to identify appropriate remote lakes where float plane access may be provided as a substitute for Lows Lake. As stated in the 2002 Bog River UMP, the advantage of this alternative was that public float plane and motorboat use on the lake would, over time, be totally eliminated, thereby providing a more wilderness type of recreational experience on the Lake and reducing user group conflicts.
However, the Department no longer considers Alternative A to be preferable for several reasons. The 2002 Bog River UMP did not fully consider as a separate alternative the management option of a mandatory permit system to avoid user conflicts and resource impacts pending an eventual ban. The Department considers this new alternative to be preferable to Alternative A, because it (1) is a less disruptive means of avoiding potential conflicts between paddlers and float planes than an immediate and complete ban on float planes; (2) recognizes the continued existence of motorized use on Lows Lake by riparian landowners but commits to additional regulations for control of aircraft on Lows Lake; (3) simultaneously implements a permit system and a date certain (December 31, 2011) for the ban to be effective that cannot be extended and is therefore a significant step towards achieving a wilderness canoe route required for compliance with the APSLMP; and (4) will avoid immediate economic consequences to float plane operators associated with an immediate ban.
Consequently, for the reasons stated above, the Department no longer considers Alternative A from the 2002 Bog River UMP to be the preferred alternative and even though this regulation will defer complete elimination of commercial float plane operations until December 31, 2011. The 2002 Bog River UMP dismissed alternatives relating to voluntary guidelines and landing zones (B and C), because they would not significantly reduce user conflicts or potential impacts to the resource. Alternative D, the purchase of inholding properties is not possible to achieve at this point in time. The "No Action" alternative would not achieve APSLMP compliance and would not address impacts of allowing unrestricted float plane use.
9. Federal Standard
There is no relevant Federal standard governing means of access to forest preserve lands.
10. Compliance Schedule
The proposed permit requirement will become effective on the date of publication in the State Register. The ban on aircraft on Lows Lake will go into effect on January 1, 2012.
Regulatory Flexibility Analysis
1. Effect of rule:
As stated in the 2009 Amendment/SEIS to the 2002 Bog River Complex the Unit Management Planning/Environmental Impact Statement (2009 Amendment/SEIS), there are two commercial float plane operators who currently fly customers into Lows Lake: Helms Aero Service (Helms) based in Long Lake, and Payne Air Service (Payne) based in Inlet. These are the last two commercial float plane operators in the Adirondack Park. This rule will have no direct economic impact on any local government, because it does not impose any compliance requirements on any local government.
2. Compliance requirements:
The interim permit conditions to be implemented through this regulation include: (1) limiting the number of flights on an annual and monthly basis; (2) prohibiting the storage of canoes or other equipment on Forest Preserve lands; and (3) reporting of flight records relating to Lows Lake by operators of commercial float planes.
It is expected that commercial floatplane operators will take advantage of this additional period of access to Lows Lake to make whatever preparations or adjustments may be necessary in order to adapt to the eventual closure of the Lake to float planes. The Department and the APA are committed to working with float plane operators to evaluate current and potential opportunities to provide other float plane opportunities in the Adirondack Park.
3. Professional services:
The float plane operators can obtain a permit and comply with this regulation without obtaining any professional services.
4. Compliance costs:
The interim permit system should not have any significant economic impact on commercial float plane operators, because: (1) float plane operators already are required to maintain flight records as part of their pilot license; and (2) the annual and monthly cap seeks to maintain past use levels by commercial float plane operators, although it does represent a reduction of flights during peak paddling season (July 1 through September). The prohibition on the storage of canoes or other equipment on Forest Preserve Lands may result in a cost of depleting monthly flight allocations used for transport of canoes and equipment rather than clients, or potential costs of finding alternative storage locations on private lands.
At the Department's request, Helms and Payne provided information concerning the economic value of Lows Lake flights to their businesses, as well as flight data detailing the number of trips (by date) that Helms and Payne made into Lows Lake during a three year period: 2005-2007 (Appendix A of the 2009 Amendment/SEIS). Helms and Payne noted that prior to adoption of the APSLMP, approximately 50 remote lakes were available for float plane access. In 1972, Helms made 625 trips to 23 lakes, all of which were subsequently closed to float plane access following adoption of the APSLMP. Helms and Payne state that approximately 15 remote lakes are used by their services today, of which 7 or 8 receive the bulk of activity. Helms states that the number of woods trips (flying to remote lakes) has declined approximately 40% from the 1972 level.
Today, woods trips constitute approximately 35-40% of gross revenues for Helms. Trips to Lows Lake comprise approximately 20% of woods trips, but due to rate schedules contribute about 30% of woods trip revenues. Moreover, due to other considerations affecting efficiency, Helms estimates that Lows Lake flights constitute over 40% of woods trips profits after hard expenses (e.g., gas, maintenance, etc.). Payne makes fewer woods trips overall than Helms, and trips to Lows Lake therefore comprise a larger proportion of Payne's wood trips. Helms and Payne state that "Lows Lake is, by a large margin, the most important lake to our economic health. . . and it is irreplaceable because of its quality as a bass fishery and its suitability for float plane operation."
5. Economic and technological feasibility:
As discussed above, it will be relatively routine for the two remaining float plane operators to apply for a permit for the 3 remaining flight seasons on Lows Lake.
6. Minimizing adverse impact:
The interim permit system established in this regulation will alleviate the economic impact to commercial float plane operators as a result of the eventual closure of Lows Lake to aircraft as required by this regulation in conformance with the Adirondack Park State Land Master Plan (APSLMP). It is expected that commercial floatplane operators will take advantage of this additional period of access to Lows Lake to make whatever preparations or adjustments may be necessary in order to adapt to the eventual closure of the Lake to float planes. The Department and the APA are committed to working with float plane operators to evaluate current and potential opportunities to provide other float plane opportunities in the Adirondack Park.
7. Small business and local government participation:
The decision to promulgate regulations with respect to float plane use on Lows Lake was the result of the 2009 Amendment/SEIS to the 2002 Bog River Complex Unit Management Plan/Environmental Impact Statement, which involved extensive public outreach, including multiple public meetings with the commercial float plane operators and local government officials. The float plane operators sent a letter to DEC in support of this proposal stating that it gave them three additional flying seasons to access Lows Lake, subject to simplified permit restrictions.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
This rule will only apply to float plane operators flying into and out of Lows Lake located in Town of Long Lake, Hamilton County and the Towns of Clifton and Colton, St. Lawrence County, including those expanses of water connected to the main body of Lows Lake, commonly known as Grass Pond, located in the Town of Clifton in St. Lawrence County, and Tomar Pond, located in the Town of Long Lake, Hamilton County.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
This proposal will not impose any program, service, duty nor responsibility upon any county, city, town, village, school district or fire district located in a rural area. There will be new reporting and monitoring requirements associated with this regulation for the commercial float plane operators flying into Lows Lake which is located in a rural area. Such operators will be required to submit a copy of flight records to the Department which will monitor the annual permit system for compliance and in turn submit a summary report to the APA.
The float plane operators can obtain a permit and comply with this regulation without obtaining any professional services.
3. Costs:
The interim permit system should not have any significant economic impact on commercial float plane operators, because: (1) float plane operators already are required to maintain flight records as part of their pilot license; and (2) the annual and monthly cap seeks to maintain past use levels by commercial float plane operators, although it does represent a reduction of flights during peak paddling season (July 1 through September). The prohibition on the storage of canoes or other equipment on Forest Preserve Lands may result in a cost of depleting monthly flight allocations used for transport of canoes and equipment rather than clients, or potential costs of finding alternative storage locations on private lands.
At the Department's request, Helms and Payne provided information concerning the economic value of Lows Lake flights to their businesses, as well as flight data detailing the number of trips (by date) that Helms and Payne made into Lows Lake during a three year period: 2005-2007 (Appendix A of the 2009 Amendment/SEIS). Helms and Payne noted that prior to adoption of the APSLMP, approximately 50 remote lakes were available for float plane access. In 1972, Helms made 625 trips to 23 lakes, all of which were subsequently closed to float plane access following adoption of the APSLMP. Helms and Payne state that approximately 15 remote lakes are used by their services today, of which 7 or 8 receive the bulk of activity. Helms states that the number of woods trips (flying to remote lakes) has declined approximately 40% from the 1972 level.
Today, woods trips constitute approximately 35-40% of gross revenues for Helms. Trips to Lows Lake comprise approximately 20% of woods trips, but due to rate schedules contribute about 30% of woods trip revenues. Moreover, due to other considerations affecting efficiency, Helms estimates that Lows Lake flights constitute over 40% of woods trips profits after hard expenses (e.g., gas, maintenance, etc.). Payne makes fewer woods trips overall than Helms, and trips to Lows Lake therefore comprise a larger proportion of Payne's wood trips. Helms and Payne state that "Lows Lake is, by a large margin, the most important lake to our economic health. . . and it is irreplaceable because of its quality as a bass fishery and its suitability for float plane operation."
4. Minimizing adverse impact:
The interim permit system established in this regulation will alleviate the economic impact to commercial float plane operators as a result of the eventual closure of Lows Lake to aircraft as required by this regulation in conformance with the Adirondack Park State Land Master Plan (APSLMP). It is expected that commercial floatplane operators will take advantage of this additional period of access to Lows Lake to make whatever preparations or adjustments may be necessary in order to adapt to the eventual closure of the Lake to float planes. The Department and the APA are committed to working with float plane operators to evaluate current and potential opportunities to provide other float plane opportunities in the Adirondack Park.
5. Rural area participation:
The decision to promulgate regulations with respect to float plane use on Lows Lake was the result of the 2009 Amendment/SEIS to the 2002 Bog River Complex Unit Management Plan/Environmental Impact Statement, which involved extensive public outreach including multiple public meetings with the commercial float plane operators and local government officials. Two informational meetings were held to explain the proposal to the public and provide an opportunity for the public to comment. The meetings were held on Wednesday, Feb. 18, at 1:00 p.m. at the APA's Ray Brook headquarters (1133 State Route 86) and at 6 p.m. at DEC's Warrensburg office (232 Golf Course Road).
Job Impact Statement
The permit system established in this regulation will alleviate the economic impact to two (2) commercial float plane operators as a result of the eventual closure of Lows Lake to aircraft as required by the Adirondack Park State Land Master Plan. The interim permit system should not have any significant economic impact on these businesses, because: (1) float plane operators already are required to maintain flight records as part of their pilot license; and (2) the annual and monthly cap seeks to maintain past use levels by commercial flat plane operators, although it does represent a reduction of flights during peak paddling season (July 1 through September). As stated in the 2009 Amendment/SEIS to the 2002 Bog River Complex the Unit Management Planning/Environmental Impact Statement, there are two commercial float plane operators who currently fly customers into Lows Lake: Helms Aero Service (Helms) based in Long Lake, and Payne Air Service (Payne) based in Inlet. These are the last two commercial float plane operators in the Adirondack Park.
A Job Impact Statement is not submitted with this rulemaking proposal because it will not have a "substantial adverse impact on existing or future jobs and employment opportunities" as this phrase is defined in law. SAPA Section 201-a defines "substantial adverse impact on existing or future jobs and employment opportunities" as a decrease of more than one hundred full-time annual jobs and employment opportunities. As explained above, this regulation will impact two commercial float plane operators, which is well below the one hundred job impact threshold set in statute.
