ENV-37-09-00007-A Prohibition of Public Use of Motorized Equipment on Certain Lands in the Adirondack and Catskill Parks

3/10/10 N.Y. St. Reg. ENV-37-09-00007-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 10

March 10, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-37-09-00007-A

Filing No. 165

Filing Date. Feb. 23, 2010

Effective Date. Mar. 10, 2010

Prohibition of Public Use of Motorized Equipment on Certain Lands in the Adirondack and Catskill Parks

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

Action taken:

Addition of section 196.8 to Title 6 NYCRR.

Statutory authority:

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

Subject:

Prohibition of public use of motorized equipment on certain lands in the Adirondack and Catskill Parks.

Purpose:

To prohibit the public use of motorized equipment on certain land classifications within the Adirondack and Catskill Parks.

Text of final rule:

The title to Part 196 is amended to read as follows:

OPERATION OF MOTORIZED VEHICLES, VESSELS, [AND] AIRCRAFT AND MOTORIZED EQUIPMENT IN THE FOREST PRESERVE

A new section 196.8 is added to 6 NYCRR to read as follows:

§ 196.8 Operation of motorized equipment in wilderness, primitive, primitive bicycle corridor and canoe areas within the Adirondack and Catskill Parks.

(a) Applicability. This section applies to all state owned lands in the Adirondack Park which are classified as wilderness, primitive and canoe by the Adirondack Park Agency. These lands are depicted on the New York State Department of Environmental Conservation Adirondack Forest Preserve Land Classifications Map, 2010. This section also applies to all state owned lands in the Catskill Park which are classified as wilderness or primitive bicycle corridor by the department. These lands are depicted on the New York State Department of Environmental Conservation Catskill Forest Preserve Land Classifications Map, 2010.

(b) No person or employee of a city, village, town or county government agency or employee of a state government agency other than the department shall possess or operate motorized equipment within the boundaries of an area of state land classified as wilderness, primitive, or canoe in the Adirondack Park, or an area of state land classified as wilderness or primitive bicycle corridor in the Catskill Park, except at times and locations and for purposes authorized by the department or in the performance of activities authorized by an easement or use reservation on lands subject to such easement or use reservation.

(c) The New York State Department of Environmental Conservation Adirondack Forest Preserve Land Classifications Map, 2010 and Catskill Forest Preserve Land Classifications Map, 2010 are available from and published by the New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233 and on file at the New York State Department of Environmental Conservation Central Office and Regions 3-6 Regional and Sub-Offices.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 196.8(c).

Text of 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, [phone], email: [e-mail]

Additional matter required by statute:

A Negative Declaration has been filed in compliance with Article 8 of the Environmental Conservation Law.

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

Changes made to the last published rule do not necessitate revision to the previously published RIS, RFA, RAFA and JIS since the changes involved updating the dates on the two maps referenced in the regulation.

Assessment of Public Comment

Comment: It is not necessary to ban chainsaws.

Response: The regulation is necessary to fulfill the legislative objective of the Environmental Conservation Law (ECL) by "preserving the unique qualities of special resources such as the Adirondack and Catskill forest preserves" (ECL Section 1-0101(3)(d)). The regulation also is necessary to implement the guidelines of the Adirondack Park State Land Master Plan (APSLMP) and Catskill Park State Land Master Plan (CPSLMP). The APSLMP provides that in wilderness, primitive and canoe areas, "Public use of motor vehicles, motorized equipment and aircraft will be prohibited." The APSLMP definition of motorized equipment is, "machines not designed for transporting people, supplies or material, or for earth moving but incorporating a motor, engine or other non-living power source to accomplish a task. The term includes such machines as chain saws, brush saws, rotary or other mowers, rock drills, cement mixers and generators." The APSLMP has been determined by the courts to have the force and effect of legislation.

The Department developed the CPSLMP to satisfy the general requirements of the ECL and to assure that the management of State lands in the Adirondack and Catskill Parks generally would be consistent. The CPSLMP provides that in wilderness areas, "Public use of motor vehicles, snowmobiles, motorboats, motorized equipment, aircraft, bicycles, and other wheeled or mechanized transportation devices used for transporting people (for example an all terrain skate board), will be prohibited." The CPSLMP defines primitive bicycle corridor as "a linear area of Forest Preserve land, adjacent to or going through, a Wilderness Area, where bicycles are permitted, but which is otherwise managed as wilderness." As in the APSLMP, the CPSLMP definition of motorized equipment specifically includes chainsaws.

Comment: Public use of chainsaws should be permitted. Chainsaws are not significantly disturbing to peace and quiet. Very few people use them. Chainsaw use for trail clearing is limited in duration, only occurring where blowdown is located.

Response: Article XIV of the New York State Constitution provides that Forest Preserve lands "shall be forever kept as wild forest lands." The Adirondack Park State Land Master Plan assigned classifications to Forest Preserve lands within the Park based on their characteristics and capacity to withstand use. The APSLMP defines wilderness as, "an area where the earth and its community of life are untrammeled by man--where man himself is a visitor who does not remain. A wilderness area is further defined to mean an area of state land or water having a primeval character, without significant improvement or permanent human habitation, which is protected and managed so as to preserve, enhance and restore, where necessary, its natural conditions, and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation..." The APSLMP provides, "The primary wilderness management guideline will be to achieve and perpetuate a natural plant and animal community where man's influence is not apparent." The use of motorized equipment is perceived as a type of human influence which impairs natural conditions and reduces opportunities for solitude. To support the goals of wilderness designation and management embodied in the definition of wilderness and set forth in management guidelines, the Master Plan requires that the public use of motorized equipment be prohibited. Because primitive and canoe areas are to be managed essentially as wilderness, the APSLMP also requires that public motorized equipment use be prohibited on lands having those classifications.

The Catskill Park State Land Master Plan defines wilderness and sets forth guidelines for its management that are almost identical to those contained in the APSLMP. Lands in the primitive bicycle corridor classification are to be managed as wilderness, with the exception that public bicycle use is permitted. Therefore, the CPSLMP requires that the public use of motorized equipment be prohibited on lands having those classifications.

Comment: Volunteer use of chainsaws by the public to clear trails should be encouraged in light of limited DEC resources. Permission for public use of chainsaws to clear trails needs to be done in a practical way, for an entire trail over an entire season or longer.

Response: The Department encourages volunteer stewardship of State-owned natural resources through policy ONR-1, the "Adopt-A-Natural-Resource Policy." ONR-1 authorizes the Department to enter into stewardship agreements with individuals or groups, allowing them to perform certain construction and maintenance activities on State lands under certain conditions. Volunteers who are listed as participants under a stewardship agreement and who meet Department safety training requirements may operate motorized equipment in wilderness, primitive and canoe areas in the Adirondack Park, as well as wilderness areas and primitive bicycle corridors in the Catskill Park, under the APSLMP and CPSLMP guidelines pertaining to administrative personnel. Volunteer stewards with specific Department approval in advance may use motorized equipment for one or more trails over periods of time for which approval is granted.

Comment: Banning chainsaw use will make it difficult for hunters to cut firewood for campfires. People will have to truck in firewood and may introduce invasive species.

Response: Visitors who camp far from roads in wilderness, primitive and canoe areas in the Adirondack Park, and in wilderness areas in the Catskill Park, may use non-motorized saws to cut dead and down wood near their campsites for use in campfires. Non-motorized saws are effective and, because they are much lighter than chainsaws, are easier to carry longer distances. Campers also may transport firewood from outside State lands for use in campfires. Those who transport firewood should take care to minimize the potential for introducing invasive species and should follow existing regulations regarding the treatment and transportation of firewood. The regulation does not prohibit the use of chainsaws in Forest Preserve areas classified as wild forest.

Comment: The regulation is necessary to implement Article XIV of the New York State Constitution and the Adirondack Park State Land Master Plan, and to protect the silence and solitude in certain Forest Preserve lands.

Response: The regulation is intended to conform with Article XIV and meet APSLMP and CPSLMP requirements designed to protect the wild character of State lands classified as wilderness, primitive and canoe areas in the Adirondack Park, as well as wilderness areas and primitive bicycle corridors in the Catskill Park.

Comment: By definition "forever wild" means as little disturbance as possible, and that should include the non-essential use of motorized implements. "Forever Wild" should have meaning backed by law and policy.

Response: The APSLMP guidelines for wilderness, primitive and canoe areas, and the CPSLMP guidelines for wilderness areas and primitive bicycle corridors, require that public use of motorized equipment be prohibited to protect the wild character of these areas. The regulation is intended to implement the guidelines by providing the means for Department staff to enforce them.

Comment: The DEC itself should abide by the prohibition on motorized equipment, with only rare exceptions in the case of search and rescue or similar emergencies.

Response: APSLMP and CPSLMP guidelines for the use of motorized equipment by administrative personnel have governed Department of Environmental Conservation staff since those documents were first adopted. The APSLMP permits the limited construction and maintenance of structures and improvements of a primitive nature, such as trails, bridges and lean-tos, to afford public recreational access to Forest Preserve lands classified as wilderness, primitive and canoe. The CPSLMP applies similar provisions to lands classified as wilderness and primitive bicycle corridor. To facilitate construction and maintenance activities, the APSLMP permits the use of motorized equipment by administrative personnel, but only "for a specific major administrative, maintenance, rehabilitation, or construction project if that project involves conforming structures or improvements, or the removal of non-conforming structures or improvements, upon the written approval of the Commissioner of Environmental Conservation." Administrative use of motorized equipment must be "confined to off-peak seasons for the area in question and normally will be undertaken at periodic intervals of three to five years, unless extraordinary conditions, such as a fire, major blow-down or flood mandate more frequent work or work during peak periods." Department trail crews may use chainsaws during a spring "chainsaw window" between April 1 and May 24 each year, as authorized by Commissioner Berle in 1976. In addition, administrative personnel may use motorized equipment "by or under the supervision of appropriate officials, in cases of sudden, actual and ongoing emergencies involving the protection or preservation of human life or intrinsic resource values - for example, search and rescue operations, forest fires, or oil spills or similar, large-scale contamination of water bodies."

The CPSLMP provides that administrative personnel "will not use motor vehicles, snowmobiles, motorized equipment, bicycles or aircraft for day-to-day maintenance or patrol of state lands designated wilderness. Administrative use of motorized equipment or aircraft may be permitted for maintenance, rehabilitation, construction, fish stocking or research projects involving conforming structures or improvements, or the removal of nonconforming structures, during two off-peak seasons each year...These "windows" will run from May 1 - June 15 and October 15 - November 15, excepting weekends. Work that cannot be scheduled within these windows may be permitted on the approval of the Commissioner." The CPSLMP also permits administrative motorized equipment use in emergencies under guidelines similar to those contained in the APSLMP. CPSLMP guidelines for administrative use of motorized equipment in wilderness also apply to primitive bicycle corridors.

Comment: Seaplanes appear to be included in the definition of motorized equipment and should not be banned.

Response: Seaplanes are not included in the definition of motorized equipment, so the regulation does not affect seaplanes. An existing regulation, 6NYCRR § 196.4, prohibits the public use of aircraft on Forest Preserve waters listed in the regulation, including those in wilderness, primitive and canoe areas. The regulation does not prohibit the public use of aircraft on lakes and ponds in wild forest areas.

Comment: The regulation should not be implemented, because DEC does not have enough staff to enforce it.

Response: The regulation is necessary to assure that the conduct of visitors to wilderness, primitive and canoe areas in the Adirondack Park and wilderness areas and primitive bicycle corridors in the Catskill Park will conform with APSLMP and CPSLMP guidelines for motorized equipment use on Forest Preserve lands in those classifications. Undoubtedly most people will abide by the regulation once they have been informed of its adoption. Department program and enforcement staff will educate the public about the existence of the regulation. Forest Rangers and Environmental Conservation Officers will be effective in ensuring compliance with the regulation in the course of their regular duties of Forest Preserve patrol, education and enforcement.

Comment: The regulation will create a public safety hazard for our New York State public works employees when trying to clean up after a snow or wind storm. What would be gained by eliminating motorized equipment? This type of equipment is only used in emergency situations.

Response: The regulation will not limit the ability of Department staff or others to use motorized equipment in conformance with the guidelines of the APSLMP and CPSLMP. Both documents provide mechanisms for the use of motorized equipment by administrative personnel for major maintenance projects, such as the removal of debris following a storm. In addition, both documents permit the use of motorized equipment "by or under the supervision of appropriate officials," in cases of "actual and ongoing emergencies" involving the protection of human life or intrinsic resource values.

Comment: Trail maintenance is an ongoing issue in the Adirondack Park. Foot trails are in deplorable condition. Maintenance will only be that more problematic should motorized equipment be eliminated.

Response: The regulation will not reduce the existing capability of Department staff or volunteer trail stewards to maintain trails. In the Adirondacks, Department trail crews, along with trail stewards having approved chainsaw safety training and operating under stewardship agreements with the Department, may use chainsaws to remove down trees from trails in wilderness, primitive and canoe areas between April 1 and May 24 each year, as authorized by Commissioner Berle in 1976. The CPSLMP provides that, in the Catskills, chainsaws may be operated in wilderness areas and primitive bicycle corridors each year from May 1 to June 15 and from October 15 to November 15, except on weekends. In addition, in wilderness, primitive and canoe areas in the Adirondack Park, and in wilderness areas and primitive bicycle corridors in the Catskill Park, chainsaws may be used at other times of the year, with Commissioner approval, to remove major blowdown.