To protect public safety, manage public use and protect natural resources on State lands.
Text of final rule:
Repeal subdivision (a) of 6 NYCRR section 190.0 and add a new subdivision (a) of section 190.0 to read as follows:
(a) Except as otherwise provided, the provisions of this Part shall apply to all persons entering upon or using State lands under the department’s jurisdiction that are administered by the Division of Lands and Forests, the Division of Operations, or both, including but not limited to such lands as unique areas, State forests, reforestation areas, multiple use areas, forest preserve, conservation areas, natural resource management areas, preserves, campgrounds and environmentally sensitive lands, and to those rights owned and managed by the State as conservation easements as defined in section 190.12 of this title.
Paragraphs (13) and (14) of subdivision 190.0(b) are renumbered paragraphs (14) and (15) and a new paragraph (13) is added to read as follows:
(13) “Structure” shall mean any object or improvement constructed, installed or placed on State lands, including but not limited to trails, roads, bridges, ramps, buildings, sheds, lean-tos, picnic tables, monuments, memorials, permanent tree stands or permanent hunting blinds, posts, rails, handrails, steps, fences, pipelines, oil, gas and other well structures, septic systems, fuel tanks, utility lines, including but not limited to telephone, electric and cable, mobile homes, campers, trailers, signs, docks and dams, except that tents, campers, temporary blinds and other temporary objects related to authorized recreational activities shall not be considered structures for the purposes of this definition, provided that such objects are in compliance with rules and regulations governing such activities on State lands.
Subdivision (a) of section 190.8 is repealed and a new subdivision (a) is added to read as follows:
(a) The use of State lands or any structures or improvements thereon for private revenue or commercial purposes is prohibited, except as authorized by section 190.7 of this title and Environmental Conservation Law sections 9-0505, 9-0507 and Article 11. This subdivision does not apply to the exercise of rights of fee owners of private lands subject to conservation easements.
Subdivision (g) of section 190.8 is amended to read as follows:
(g) No person shall deface, remove, destroy or otherwise injure in any manner whatsoever any tree, flower, shrub, fern, fungi or other plant like organisms, moss or other plant, rock, soil, fossil or mineral or object of archaeological or paleontological interest found or growing on State land, [excepting] except for personal consumption or under permit from the Commissioner of Environmental Conservation and the [Assistant Commissioner for State Museum and Science Service,] Commissioner of Education, pursuant to section 233 of the Education Law.
New subdivisions (r) through (ff) of section 190.8 are added to read as follows:
(r) No person shall operate or possess a snowmobile on forest access roads, truck trails, roads, trails or other areas on State lands outside of the forest preserve which are posted or designated by the department as closed to snowmobile use.
(s) No person shall operate or possess a bicycle on forest access roads, truck trails, roads, trails or other areas on State lands outside of the forest preserve which are posted or designated by the department as closed to bicycle use.
(t) Operation of mechanically propelled vessels.
(1) No person shall operate or possess a mechanically propelled vessel other than an electric powered vessel on State lands outside the forest preserve on the following bodies of water:
UTM Coordinates USGS
County
State Land
Water Body
East
North
Quad
Region 3
Dutchess
West Mountain State Forest (SF)
Blackberry Pond
614671
4608789
Pawling, Dover Plains, Verbank & Poughquag
Orange
Stewart SF
Beaver Pond
567672
459120
Maybrook
Orange
Stewart SF
Restoration Pond
567041
459043
Maybrook
Orange
Stewart SF
Rowe's Pond
566109
4591959
Maybrook
Orange
Stewart SF
Stick Pond
567133
4594384
Maybrook
Orange
Stewart SF
Pittman-Robertson Pond
569356
4594408
Maybrook
Orange
Stewart SF
Wilkens Pond
567762
4594473
Maybrook
Putnam
White Pond Multiple Use Area (MUA)
White Pond
606593
4592021
Poughquag & Lake Carmel
Putnam
California Hill SF
Waywayanda Lake
601402
4588380
Oscawana Lake
Sullivan
Hickok Brook SF
Hickok Brook Pond
510497
4594568
Highland Lake & Eldred
Region 4
Columbia
Beebe Hill SF
Barrett Pond
625746
4688111
State Line
Region 6
Lewis
Bonaparte's Cave SF
Green Pond
470119
4890100
Lake Bonaparte & Harrisville
Lewis
Bonaparte's Cave SF
Duck Pond
470316
4889752
Harrisville
Lewis
Bonaparte's Cave SF
Mud Pond
470711
488576
Harrisville
Oneida
Big Brook SF
Johnny Smith Pond
442498
4808902
Florence
Oneida
Albert J. Woodford SF
Chittning Pond
474260
4751058
Cassville
Region 7
Broome
Nanticoke Lake MUA
Nanticoke Lake
410712
4687400
Lisle
Cayuga
Bear Swamp SF
Bear Swamp
393547
4733740
Sempronius
Cayuga
Frozen Ocean SF
Frozen Ocean Pond West
383367
4738897
Owasco
Chenango
Genegantslet SF
Balt Pond
436172
4696053
Smithville Flats
Chenango
Long Pond SF
Round Pond
430942
4694538
Smithville Flats
Chenango
McDonough SF
Kopak's Pond
442482
4707412
East Pharsalia
Chenango
McDonough SF
Whaley Pond
442452
4708923
East Pharsalia
Chenango
Whaupaunaucau SF
Jeffrey's Pond
461480
4717604
Holmesville
Cortland
Gee Brook SF
Calico Pond
422675
4708894
Cincinnatus
Madison
Charles E. Baker SF
Woodland Pond
469210
4734506
Hubbardsville
Onondaga
Morgan Hill SF
Shackham Pond
417573
473216
Tully
Onondaga
Morgan Hill SF
Spruce Pond
416026
4739101
Tully
Tioga
Oakley Corners SF
Oakley Corners Pond
404195
4669050
Newark Valley
Tioga
Oakley Corners SF
Oakley Corners Pond South
404158
4668437
Newark Valley
Tompkins & Cortland
Robinson Hollow SF
Tri-County Pond
396864
4695960
Dryden
Region 8
Livingston
Ossian SF
Evergreen Pond
268500
4708247
Canaseraga
Steuben
Birdseye Hollow SF
Birdseye Hollow Pond
322949
4693357
Savona
Steuben
Birdseye Hollow SF
Sanford Lake
320620
4688847
Savona
Steuben
Cameron SF
Cameron Pond
301934
4679191
Cameron
Steuben
Cameron SF
Unnamed
301240
4680940
Towlesville
(2) No person shall operate an inboard or outboard motor rated at greater than 25 horsepower on State lands outside the forest preserve on the following body of water:
UTM Coordinates USGS
County
State Land
Water Body
East
North
Quad
Region 7
Chenango
Long Pond SF
Long Pond
430390
4696715
Smithville Flats
(u) No person shall enter or remain upon or use any forest access road, truck trail, road, trail, facility or any other area on State lands that are posted or designated by the department as closed to public use.
(v) No person shall set, light, use or maintain a fire or campfire of any kind on State lands which are posted or designated by the department to prohibit campfires. Under no circumstances are campfires allowed on any forest access road, truck trail, road, trail or parking area on State lands.
(w) No person shall erect, construct, install, maintain, store, discard or abandon any structure or any other property on State lands or subsequently use such structure or property on State lands, except if the structure or property is authorized by the department or is:
(1) a geocache that is labeled with the owner’s name and address and installed in a manner that does not disturb the natural conditions of the site or injure a tree;
(2) a camping structure or equipment that is placed and used legally pursuant to this Part;
(3) a legally placed trap or appurtenance that is placed and used during trapping season;
(4) a tree stand or hunting blind that does not injure a tree, is properly marked or tagged with the owner’s name and address or valid hunting or fishing license number, and is placed and used during big game season, migratory game bird season, or turkey season; or
(5) a wildlife viewing blind or stand that is placed for a duration not to exceed thirty (30) days in one location per calendar year, does not injure a tree, and is properly marked or tagged with the owner’s name and address or valid hunting or fishing license number.
(x) On State lands, no person shall erect, construct, occupy or maintain any structure that is affixed to a tree by nails, screws or other means that injure or damage the tree except as otherwise authorized by the department.
(y) No person shall erect, construct, maintain, occupy or use any tree stand that is used, operated, accessed or reached by methods or means which injure or damage a tree on State lands, and no person shall gain access to any structure in a tree on State lands by means that injure or damage the tree.
(z) No person shall drive a trailer or motor vehicle, including the wheels thereof, into a body of water to launch or retrieve a vessel on State lands which the department has posted or designated as closed to trailer launching of boats.
(aa) The Commissioner may prohibit campfires or the use of liquid or gaseous fuel camping stoves or lamps on State lands during periods of high fire danger.
(bb) No person shall possess breakable targets, including but not limited to clay pigeons, on State lands and no person shall target shoot at breakable targets, including but not limited to clay pigeons and glass containers, on State lands. Unless legally engaged in the act of hunting, no person shall discharge firearms on State lands posted or designated as closed to target shooting.
(cc) On State lands, no person shall sponsor, conduct or participate in any organized event of more than twenty people unless otherwise authorized by the department. Examples of organized events include, but are not limited to: sponsored hikes; archery and fishing tournaments; snowmobile, bicycle, horse and orienteering races, runs, rides or competitions (including biathlons and triathlons); encampments; and re-enactments.
(dd) No person shall sponsor, conduct or participate in any research project on State lands except under permit from the department. Examples of research include, but are not limited to, population studies, collection of scientific samples, placement of scientific instruments, seismic exploration and archaeological studies. This subdivision shall not apply to bird population data collection such as, but not limited, to Audubon’s Christmas Bird Count, the USGS Breeding Bird Survey and Cornell Lab of Ornithology’s e-Bird database; nor shall it apply to any other research exempted by the Department in writing on a case by case basis.
(ee) On State lands, no person shall sponsor, conduct or participate in: advertising, weddings, commercial film making activities or film making activities that exclude other public use of the area, and other similar events, except under permit from the department.
(ff) No person shall possess paint balls or paint ball guns on State lands, and no person shall sponsor, conduct or participate in any activities associated with the discharging of paint balls on State lands.
Add new Section 190.35 of Part 190 to read as follows:
190.35 Severability.
If a provision of this Part or its application to any person or circumstance is determined to be contrary to law by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of this Part or the application to other persons and circumstances.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 190.0(a), (b)(13), 190.8(a), (g), (r)-(z), (aa)-(ff), and 190.35.
Text of rule and any required statements and analyses may be obtained from:
David M. Forness, NYS DEC, Bureau of State Land Management, 625 Broadway, Albany, NY 12233-4255, (518) 402-9428, email: dmfornes@gw.dec.state.ny.us
Additional matter required by statute:
A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.
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)), preserving the unique qualities of special resources such as the Adirondack and Catskill Forest Preserve (ECL Section 1-0101(3)(d)), promoting and coordinating management of land resources to assure their protection, taking into account the cumulative impact upon all such resources in promulgating any rule or regulation (ECL Section 3-0301(1)(b)), providing for the care, custody, and control of the Forest Preserve and non-Forest Preserve lands (ECL Section 3-0301(1)(d)) and 9-0105(1)), providing for prevention and abatement of water, land and air pollution (ECL Section 3-0301(1)(i)), prohibiting the construction and storage of structures and personal property on State lands, and allowing for the removal of such by DEC (ECL Section 9-0303), 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)), adopting rules and regulations to effectuate the purposes and to secure proper enforcement of the Environmental Conservation Law, and more particularly, adopting rules and regulations prohibiting any person from entering upon State-owned lands, or restricting the activities of the public on such land, whenever it determines that a serious fire hazard exists thereon (ECL Section 3-0301(2)(m), Section 9-0105(3) and 9-1105(1)). 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 Department's purpose in proposing these Part 190 amendments is to improve its stewardship of lands under its jurisdiction. As more fully described below, this proposed rulemaking will meet the legislative objectives of providing for the beneficial use of the environment by the public and preserving and enhancing natural resources. In addition, the proposed rulemaking will protect the public health and safety, as more fully discussed below. Specifically, this rulemaking proposes restrictions for the following public uses of State lands: snowmobiles; bicycles; mechanically propelled vessels and trailered boats; campfires; permanent tree stands and other structures attached to trees; the construction and storage of structures and personal property; organized events; target shooting; and for private revenue or commercial purposes.
While it is the Department's goal, in keeping with the legislative objectives, to provide for a spontaneous recreational experience on State lands, regulatory restrictions must sometimes be imposed to prevent unacceptable impacts resulting from public use, particularly in high use areas where the carrying capacity is exceeded. These proposed amendments will enable the Department to protect natural resources while appropriately managing public use to ensure that the public benefits from a safe and satisfying recreating experience.
For example, the proposed regulations will add clarity with respect to where persons are not allowed to operate snowmobiles, bicycles and mechanically propelled vessels will ensure safe enjoyment of State lands by prohibiting their operation in hazardous areas, on ecologically sensitive sites and where user conflicts would occur.
Adding clarity and precision to the regulations will better educate the public about appropriate uses of State lands. In many instances, such education will result in self-regulation by the public, thereby facilitating natural resource protection.
3. Needs and benefits
Article XIV, Section 1 of the New York State Constitution mandates that the Forest Preserve be “forever kept as wild forest lands,” and Articles 3 and 9 of the ECL mandate the preservation and protection of all state lands under the Department's jurisdiction by empowering the Department to exercise “care, custody and control” over this land. The purpose of this rulemaking is to clarify and strengthen regulations governing public use of both Forest Preserve and non-Forest Preserve lands.
The applicability provisions of Part 190 need to be revised to clarify that the provisions apply to public use on all lands administered by the DEC Divisions of Lands and Forests or the Division of Operations pursuant to articles 9, 45, 49, 51 and 52 (but not article 11) of the ECL. Part 190 does not apply to wildlife management areas (WMAs), and the new regulation makes that clear. The new language also makes clear that Part 190 applies to all classifications of forest land, such as unique and multiple use areas. This clarification is needed to allow for consistent management and effective stewardship.
Overall public use of State land has increased markedly since the initial adoption of 6 NYCRR Part 190 in 1972. In many areas of the State, private land postings, subdivision development, and increased demands for access to open space have increased public uses of State lands. Also, the nature of public recreation has evolved: shifting away from more traditional passive uses such as hunting, fishing and hiking to more high impact activities such as snowmobiling and bicycling. The proposed regulations are necessary to address the environmental damage and public safety issues resulting from unrestrained snowmobile and mountain bicycle use, uncontrolled campfires, permanent tree stands, unauthorized boat launching, significant increases in litter, increased user conflicts, and the unregulated storage of boats, motor vehicles and other personal property on State lands. As more people utilize State lands, certain roads, trails, campsites, and hunting areas have experienced substantial environmental damage. This increased environmental damage also increases risks to public health and safety. For instance, damage to root systems can kill trees, creating hazards to the public who are recreating beneath them. Unrestrained public recreational activities can cause erosion on fragile mountain slopes, increasing avalanche danger.
The absence of regulations on non-Forest Preserve lands for the control of the public use of snowmobiles, bicycles and mechanically propelled vessels hinders the Department's ability to provide the public with a safe and enjoyable recreational experience. These proposed regulations will enable the Department to exclude snowmobile, bicycle and mechanically propelled vessel use from lands that are ecologically or environmentally sensitive or are unsafe. These regulations also give the Department the ability to address user group conflicts which sometimes occur between snowmobilers and cross country skiers, as well as bicyclists and hikers, and canoeists and motorboat operators.
Additionally, the proposed regulations are needed to prohibit public use of State owned land or facilities and assets that the Department closes or imposes restrictions on for public health, safety, fiscal, and environmental reasons.
Consistent with the Department's constitutional and statutory mandate, the proposed regulations are needed to prohibit public use of non-Forest Preserve lands or facilities and assets situated thereon for private revenue and commercial purposes. With the exception of the sale of articles by permit on campgrounds, the sale of certain forest products, and the leasing of oil and gas rights and licensed guide services, the use of State lands for private revenue and commercial purposes is not authorized by legislation and is inconsistent with the purposes for which these lands were acquired. The proposed regulation prohibiting fires on truck trails, roads, trails or parking areas, and in other areas where posted by the Department, is necessary to protect public health and safety, particularly during high fire danger conditions and to reduce related problems with littering, and under-age drinking parties.
The proposed regulations are also needed to allow the Department to prohibit, restrict or regulate large organized group events, such as competitive races, tournaments, group hikes, biathlons, conventions and similar large gatherings, and to allow the Department to prohibit, restrict or regulate weddings, advertising, and film making activities which exclude the general public from an area. Research projects also need to be controlled. The attraction and concentration of large numbers of persons to a particular location on State lands has the potential to conflict with the enjoyment of other recreational users and can result in damage to natural resources. Repeated or unregulated research of rare and endangered species or communities can create irreversible damages to the subject area. Regulation of organized events and research projects, through a permit process, is necessary in order to protect the public health and safety as well as the environment. Many of these impacts can be avoided through the imposition of mitigating conditions as part of the permit process, which might include limiting group size, regulating the location and timing of the event, and imposing conditions for addressing human waste.
The proposed regulatory restrictions on target shooting are necessary to protect the safety of the non-shooting and shooting public. The prohibition on the use of breakable targets will also avoid deposition of debris such as glass and clay targets that can be both unsightly and damaging to the environment and human health.
The proposal to prohibit paint ball possession and use will address aesthetic and natural resource impacts. Paint is unsightly, degrades the scenic beauty of State lands, is inconsistent with the purposes for which State land has been acquired by the Department, and requires time-consuming and expensive clean up.
The proposal to prohibit permanent tree stands is needed because their installation harms trees and, on non-Forest Preserve lands, can cause significant decrease in the lumber quality of trees resulting in an economic loss to the State. Permanent tree stands are also extremely dangerous as there are no standards for their construction or maintenance, and they can become unstable and collapse when occupied by people.
Except for campsites (see 6 NYCRR 190.4), there are currently no regulatory prohibitions on the storage of personal property on State lands under the Department's jurisdiction, nor are there any regulatory prohibitions on the erection or construction of structures on State lands. Without such regulations, the Department's ability to effectively enforce against such abuses is hindered. The construction of private buildings and structures, and the storage of personal property on State lands constitute a trespass on State lands, causes the Department to incur solid waste disposal costs, and creates other management, environmental and land use problems. Without the proposed regulations, it is difficult to deter many types of inappropriate behavior on State lands. For example, numerous boats are routinely stored for years along the shoreline of lakes and ponds managed by the Department. Many of these boats are ultimately abandoned, vandalized or sunk.
The proposed rulemaking will enhance the Department's ability to protect State lands for use by future generations. Protection of open space for public use promotes well being not only for those who recreate on these lands, but also for those who are comforted by the knowledge that the land will be there for future generations who desire to escape the noise and stress of everyday life.
Members of the Department's Forest Preserve Advisory Committee, Accessibility Advisory Committee and the New York State Trails Council and the presidents of Parks and Trails New York, New York State Trappers Association, New York Mountain Bike Coalition, New York Geocachers, New York State Conservation Council, New York Bowhunters, the Conservation Fund Advisory Board, the Conservation Alliance of New York and the New York State Snowmobile Association received notice of the Department's intent to promulgate these regulations along with a copy of the proposed regulations. All parties were invited to submit comments. The responses that were received were carefully considered and accommodated wherever possible.
4. Costs
No costs to the regulated community or the Department are anticipated to result from the adoption of these regulations except for the insignificant fees and administrative costs associated with applying for and processing Temporary Revocable Permits (TRPs) for the specified recreational activities. There may also be some increased costs to those who are ticketed for violating the new regulations, although typically the Department enforcement personnel initially seek to educate the public about new regulations before enforcing against them. The proposed regulations requiring TRPs merely formalize in regulation the current policy that a TRP be obtained prior to undertaking these specified activities; thus, there are no new TRP application costs that will be incurred by the public.
The Department will have minor costs associated with sign installation. Costs incurred by rescue squads and EMTs should be reduced by the rulemaking as it provides additional opportunities to protect public safety and minimizes the potential for accidents. Further, there will be fewer forest fires if the regulations are adopted, and the costs to the State for fighting fires will therefore be reduced. Costs to the Department for disposing of personal property and trash should decrease as a result of the new regulations.
Environmental, social and programmatic costs associated with the abuses discussed above, which are currently internalized, should decrease significantly. For example, the implementation and enforcement of the proposed regulations will reduce the use of certain trails during wet weather, thereby avoiding and mitigating soil erosion, tree decline and death, and stream siltation. The decrease in such hazardous conditions will also enhance public safety. The implementation of the proposed regulations will avoid and mitigate shoreline degradation resulting from irresponsible boat launching, protect timber values or tree health by prohibiting the improper installation of structures or tree stands, protect water quality and habitat of small ponds by banning gas powered motors on designated waterbodies, and decrease the potential risk for forest fires caused by careless human conduct. Currently, the Department has identified more than $100 million in maintenance, repair and capital improvement needs for its State lands under its jurisdiction. The proposed regulations will lessen environmental degradation and should therefore help to reduce the enormous cost of State land maintenance needs.
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 and may lessen the burden for local governments with respect to fire fighting and search and rescue costs.
6. Paperwork
The regulations will not impose any reporting requirements or other paperwork on any private or public entity, with the possible exception of TRPs as explained above in Section 4.
7. Duplication
The proposed regulations will not duplicate, overlap or conflict with other rules and legal requirements of State and Federal governments. The proposed regulations will help to implement current statutory provisions which protect the natural resource values of State lands.
8. Alternative approaches
The "no action" option is not an acceptable alternative because these regulatory changes are essential to public safety and natural resource protection. The absence of these regulations diminishes the Department's ability to be a good steward of the lands entrusted to its “care, custody and control," and diminishes the ability of the Department to provide the public with a safe and rewarding recreational experience.
It is important to note that the proposed regulation for controlling bicycle and snowmobile use on State lands is an “affirmative” regulation which would allow bicycle and snowmobile use on non-Forest Preserve lands except on roads, trails and areas posted as closed. This regulatory approach serves as an efficient land management tool to close only those specific roads, trails or areas that are experiencing environmental damage or are unsafe for use. The vast majority of State roads, trails and areas will continue to remain open to bicycle and snowmobile use. The alternative of allowing bicycle and snowmobile use only on roads and trails signed as open would be inefficient and would be an ineffective use of staff resources.
The Department believes that allowing the use of electric powered vessels on the bodies of water that are proposed to be closed to mechanically propelled vessels provides a clean alternative to the use of mechanically propelled vessels. Most of these water bodies are small, contain submerged stumps or are ecologically valuable and sensitive.
The proposed regulatory prohibition on the use of permanent tree stands on State lands (subdivisions 190.8(x) and (y)) is necessary to ensure public safety, protect forest health, and minimize economic loss resulting from degradation in timber value. Proposed section 190.8(w) allows for the use of portable tree stands on State lands, thus providing an alternative for people who wish to use tree stands as hunting aids.
It is not possible for the Department to propose an alternative to the proposed prohibition relating to the use of State lands for private revenue or commercial purposes given the Department's lack of statutory authority for allowing these activities (except as otherwise noted).
The proposed restrictions on the storage of personal property on State lands provide an exception in the form of a Department permit authorizing such activity. Although such permits would likely be rarely issued, this exception provides an alternative to an absolute prohibition on the storage of personal property on State lands.
An alternative to requiring a permit for organized events would be to designate specific areas for these events on State lands. This alternative would eliminate, for these activities, the need for permits but could result in overuse and consequent environmental degradation of the designated group activity areas. Additionally, the lack of permitting requirement would not allow the Department to establish conditions in the permit designed to avoid and mitigate potential impacts and safety issues resulting from an organized event and to require liability protection for the State.
The “no action” alternative with respect to clarifying the applicability section of Part 190 is not acceptable because the State Legislature mandated that the Department provide for the “care, custody and control” of Forest Preserve and non-Forest Preserve lands. Thus, the regulations should be clear as to their applicability. The lack of clarity and consistent application of public recreation restrictions has the potential to confuse the public with respect to what restrictions apply to a particular classification of land. Also, the lack of clarity has the potential to diminish the Department's ability to achieve the legislative objectives of resource preservation.
9. Federal standard
These regulations do not exceed any minimum standards of the Federal government. There are no relevant federal standards related to these regulations.
10. Compliance schedule
This proposed rulemaking does not impose any compliance requirements or mandates, therefore, there is no compliance schedule. The rulemaking will become effective on the date the notice of adoption is published in the State Register.
Revised Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for small businesses and local government is not submitted with these regulations because the proposal will impose no adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local government.
Since there are no identified cost impacts for compliance with the proposed regulations on the part of small businesses and local government, they will bear no economic impact as a result of this proposal. The proposed rule solely relates to the control of public use on state lands.
Revised 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 rule solely relates to controlling public use on state lands, thereby ensuring public safety and protection of natural resources.
Revised 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 rule solely relates to controlling public use on state lands, thereby ensuring public safety and protection of natural resources.
Assessment of Public Comment
This document is a summary of the assessment of public comment. A complete version may be obtained by contacting the DEC contact person listed in the notice of adoption.
190.0 (a) Introduction
This section is amended to clarify what types of State lands classifications are governed by Part 190 by indicating which DEC divisions administer such lands and expanding the existing list of administrative land classifications governed by Part 190.
Commenters suggested that separate regulations be developed for easement lands to allow traditional usage and expanded public recreational use. This is not feasible due to the variable nature of the terms of easements held by the Department. The Department intends to promulgate specific regulations for easement lands if necessitated by public use issues.
Commenters also asked if the proposed regulations cover Wildlife Management Areas. They do not. WMAs are covered by 6 NYCRR Parts 1 through 189.
190.0(b)(13) Definition of Structure
This new definition has been added to address the increasing number of trespasses on State lands, and to ensure that the Department can effectively enforce the statutory prohibitions against persons who erect, use or maintain structures on State lands. This new definition of structure and corresponding restriction with respect to the building of structures on State lands found at Subdivision 190.8(w) should facilitate enforcement of the following statutory prohibitions. ECL Section 9-0303(2) states that, “[n]o building shall be erected, used or maintained upon State lands except under permit from the department.” ECL Section 9-0303(4) states that, “[n]o person shall deposit or leave on State land any rubbish or other waste material.” ECL Section 9-0303(6) states that, “[t]he department may dispose of any improvements upon State lands under such conditions as it deems in the public interest.”
Commenters recommended that trapping and angling should be added to the list of uses for which associated equipment is not considered structures. This suggestion was incorporated into the regulation.
190.8(a) Commercial Use of State land
This subdivision has been repealed and a new subdivision added to clarify that the prohibition relating to commercial use of State lands applies to Forest Preserve as well as Reforestation areas and other areas under the Department's jurisdiction with the exception of specified commercial uses such as permitted vendors at campgrounds (6 NYCRR Section 190.7[a][19]), sale of forest products from reforestation areas (ECL Section 9-0505) leasing of oil and gas rights on Reforestation areas (ECL Section 9-0507), and licensing of guides (ECL Section 11-0533). Notwithstanding the statutory and other exceptions, the State Legislature has mandated that the Department manage lands under its jurisdiction for natural resource protection and public recreation and not for commercial purposes. For example the ECL provides the Department with 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 special resources such as the Adirondack and Catskill Forest Preserve (ECL Section 1-0101(3)(d)),
• promoting and coordinating management of land resources to assure their protection, taking into account the cumulative impact upon all such resources in promulgating any rule or regulation (ECL Section 3-0301(1)(b)),
• providing for the care, custody, and control of the Forest Preserve and non-Forest Preserve land (ECL Section 3-0301(1)(d)) and 9-0105(1)),
• providing for prevention and abatement of water, land and air pollution (ECL Section 3-0301(1)(i)),
• 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)), Section 9-0105(3) and 9-1105(1)), and
• acquisition of lands outside of the Adirondack and Catskill Parks for reforestation and maintenance of forests for watershed protection, the production of timber, and for recreation and kindred purposes (ECL Section 9-0501(1).
Commenters opined that the ECL does not prohibit commercial use of State lands. The State Legislature sets forth broad purposes for which State lands under the Department's jurisdiction. With the specified limited exceptions, the Legislature did not grant the Department the authority to manage its lands for commercial use.
Commenters also opined that the regulations as proposed could be interpreted to prohibit trapping. The addition of “Article 11” to subdivision 190.8 (a) clarifies that trapping is allowed.
190.8(g) Removing and defacing of natural resources and other materials on State lands
This subdivision has been revised by adding fungi or other plant like organisms, soil, and objects of archaeological or paleontological interest to the existing list of materials that may not be removed from State lands without Department authorization. In response to public comment language has been added to allow for personal consumption of fungi and berries without a permit. In addition, revisions have be made for consistency with section 233 of the State Education law: changing the authorizing entity from the Assistant Commissioner for State Museum and Science Service to the Commissioner of Education.
Comment 1: Subdivision (g) should be re-worded so that inadvertent damage caused by people doing things they are allowed to do is not a violation of the regulations.
Comment 2: Public hearings should be held before these regulations are adopted, especially in regard to the picking of mushrooms.
Comment 3: Collecting berries and mushrooms should be allowed on state lands.
Response:
Under subdivision 190.8(g) it has always been and continues to be unlawful for any person to 'deface, remove, destroy or otherwise injure in any manner whatsoever any tree, flower, shrub, fern, moss or other plant, rock, fossil or mineral found or growing on State Land, except under permit. . .' This regulatory provision implements ECL Section 9-0303 which states that “[n]o person shall remove any materials belonging to the state from state lands without the authorization of the department.” The new regulatory revisions merely expanded the existing regulatory list of things that cannot be removed from State land. The regulation now more accurately reflects the statutory prohibition.
It is not reasonable to suggest that subdivision 190.8(g) would prohibit “inadvertent damage” such as stepping on a fern. Regulations like statutes must be interpreted in a reasonable manner and not in way that would have mischievous or ridiculous results. 'A forced, unnatural, or ridiculous construction, which might tend to bring contempt upon the administration of justice is to be shunned, and a court must avoid such interpretations. . .', which are illogical and never intended by the promulgating agency (see Statutes sections 144-146). Finally, it is highly significant that this subdivision has been in place for over 30 years and has not been interpreted by the courts or DEC in the manner that the commenter suggests.
Comment 4: Are burls, branches, cones and other growths on plants covered by this section of the regulations?
Response: Yes. Under ECL Sections 9-0303 and 9-0505, and subdivision 190.8(g) it would be unlawful for any person to remove burls, branches, cones and other growths on plants from State lands without a permit from the Department.
190.8(r) Operation of snowmobiles
Subdivision 190.8 (r) has been modified from the original proposal based on public comments, factors not originally considered relating to snowmobile design, and a more thorough analysis of associated adverse environmental impacts. The original proposal excluded snowmobiles from all trails unless posted as open to snowmobiles. As modified, snowmobiles will be allowed on all trails unless posted as closed to snowmobiles. The Department considered the following factors in making this revision:
• Snowmobile design has evolved over the last decade to larger machines, which has severely limited their ability to operate on ungroomed trails. Thus, the Department can manage snowmobile use by limiting trail grooming.
• The revised regulation allows the Department to post specific roads and trails as closed to snowmobiles in circumstances and at locations where off-trail or on-trail use could potentially damage the resource or create user conflicts. For example, the Department retains the authority to post deer winter yarding areas, sections of trail in need of repair, active timber sale areas, trail sections connected by a bridge in need of repair or areas being actively harvested for timber as closed to snowmobile use.
Finally, this revision allows local residents to use ungroomed trails to access nearby groomed trails. This use will not create significant environmental impacts (due to the “self limiting” design of modern snowmobiles) and will allow snowmobile access to State Forest trails.
There were comments in support of the originally proposed subdivision. Other commenters opined that the proposed regulations were overly restrictive and would cause financial impacts to the State. The provision restricting snowmobiles to trails only has been removed. The revised regulations allow snowmobile use on roads and trails unless posted as closed.
Commenters also suggested re-routing snowmobile trails to minimize the disruption of wildlife. The Department retains the regulatory authority to close trails and other areas to snowmobiles as necessary to protect natural resources.
Commenters also suggested that Recreation Management Plans (RMPs) are the more appropriate forum in which to address this issue. Any public use controls recommended in RMPs would require regulations to enforce them.
190.8(s) Bicycle use on non-forest preserve lands
Under this new subdivision, bicycles are allowed on truck trails, roads, trails or other areas unless posted as closed with respect to State lands outside the forest preserve. This new subdivision is necessary because the old regulations were inadequate with respect to managing user conflicts and environmental damage resulting from mountain bicycles. This new provision will enable land managers to close trails and areas to bicycle use as necessary to rectify such problems.
Commenters suggested that there are no environmental or safety issues associated with mountain bikes, and that mountain biking should not be considered a “high impact activity.” Impacts from mountain biking are well documented particularly in regard to wildlife and other recreationists, and in regard to wetlands, steep slopes and fragile soils, which are susceptible to erosion. This revised subdivision allows the Department to address such environmental impacts through trail closures.
Commenters also recommended that forest roads and trails should remain open to bicycle use. They will, unless posted as closed by the Department.
190.8(t) Only electric powered vessels allowed on specified ponds
This provision will protect these ponds from environmental degradation that may result from the operation of non-electric powered vessels.
Commenters suggested that Long Pond in Chenango County should not be included on the list of water bodies on which only electric motors are allowed, and that a horsepower restriction would be more appropriate. This suggestion has been incorporated into the regulation. The Department is proposing to limit the motor size which can be used by any person to a maximum of 25 horsepower. This is anticipated to reduce the incidence of boaters speeding and other incompatible boat based recreational uses on the pond, and is likely to impact relatively few anglers. The 25 horsepower maximum was selected to match an existing regulation on nearby Whitney Point Reservoir. The Whitney Point Reservoir restriction was based on extensive public input.
190.8(w) Prohibition on the Storage/abandonment of Structures and Property on State lands
(Note: proposed subdivision 190.8(cc) has been incorporated into adopted subdivision 190.8(w)).
This provision is necessary to address the increasing number of structures and personal property that are being stored and abandoned on State lands, while at the same time continuing to allow structures relating to hunting, trapping, wildlife viewing and camping for limited duration and that are in compliance with all other laws and regulations. This regulatory language implements ECL Section 9-0303, which provides in pertinent part:
• No building shall be erected, used or maintained upon State lands except under permit from the department;
• No person shall deposit or leave on State lands any rubbish or other waste material; and
• The department may dispose of any improvements upon State lands under such conditions as it deems to be in the public interest.
Commenters suggested that there is no reason for tagging trapping cubbies. This subdivision has been revised so as not to require tagging of trapping cubbies.
The suggestion was also made that the word “use” be removed from this subdivision. Revisions have been made to clarify that the “use” of illegally placed structures and property is prohibited. However, there has never been any intention by DEC to prohibit public use of authorized structures and property.
Commenters suggested that boats should be allowed to be stored on State lands. While boats and canoes left on State lands may serve a purpose to the users, they present an aesthetic nuisance to the public and a solid waste liability for the Department.
Commenters opined that time limitations and tagging are unneeded and would only open the user to harassment. Quantifying the duration that certain exceptions may be stored on State lands and tagged with owner identification information allows for fair and effective enforcement. Tagging allows law enforcement personnel to contact the owner in order to request compliance. In the alternative, Department staff would be faced with confiscation and disposal of unclaimed property.
Commenters suggested allowing hunting or fishing license numbers be affixed to structures as identification in lieu of name and address. Subdivision (w) has been modified to allow other means of tagging structures.
190.8 (bb) Prohibition on possession and shooting breakable targets and prohibition on target shooting on areas posted as closed to target shooting
This regulation is necessary to avoid the deposition of debris such as glass and clay targets that can be both unsightly and damaging to the environment and human health. The closure of certain areas to target shooting is necessary for public safety.
Commenters opined that target shooting should continue to be allowed on State lands. This subdivision relates to possession and shooting of breakable targets; shooting at paper or other non-breakable targets would be allowed so long as the area is not posted as closed to target shooting for public safety issues.
Commenters pointed out that the proposed regulation prohibited the possession of bottles on State land. The regulation has been re-written so that it is lawful to possess glass containers, but unlawful to target shoot at glass containers.
190.8(cc) Organized Events
Organized events of more than twenty people will now require a permit from the Department. Since 6 NYCRR Part 190 went into effect in 1972, public use patterns and forms of recreation have significantly changed. Larger groups undertaking recreational activities at greater intensity levels have resulted in larger and sometimes permanent adverse impacts to natural resources and conflicts with other user groups. This subdivision allows the Department to impose permit conditions on large user groups to avoid and mitigate potential adverse environmental impacts.
Commenters opined that the proposed subdivision was overly restrictive, and that certain types of groups should be allowed to be over 20 people without a permit. The Department's unit management planning process has documented that the unrestricted use of State lands by large groups results in adverse impacts. If such impacts are left unchecked, future generations will inherit over-used State lands in need of costly remediation. Department staff are considering various approaches to expedite the existing temporary revocable permit (TRP) process.
Commenters opined that the proposed subdivision is unenforceable and unconstitutional, and expressed concern that chance meetings of groups whose combined total was over 20 would result in a violation. The ECL authorizes the Department to exercise “care, custody and control” of State lands under its jurisdiction. Placing a restriction on group size is an appropriate exercise of the Department's “care, custody and control” authority and is not a violation of an individual's constitutional rights.
190.8(dd) Research and Population Studies
Commenters expressed concern that the proposed subdivision could be interpreted very broadly, resulting in any observation or counting of objects or animals being considered a violation. The regulations have been revised to allow observational research that does not involve disturbance of the subject.
Commenters also expressed concern that the permitting process could delay important research. Department staff are considering various approaches to expedite the existing temporary revocable permit (TRP) process.
Commenters suggested that the Department may be exceeding its authority by proposing regulations that would restrict research activities on easement lands where the rights of administration and inspection had not been conveyed to the State. The rights of the public to use easement lands are largely determined by the terms of each easement. The existing language of Part 190 and as amended by this rulemaking continue to apply to easement lands to the extent that the State acquired the right of public access.
190.8(ee) Advertising, weddings, film making
This section has been added to address certain activities that dominate an area of State land to such an extent that they exclude others from using the property.
Commenters opined that the proposed subdivision was overly restrictive and unnecessary, specifically regarding recreational filming and photography. The proposed regulations have been revised to allow small-scale film making and non-commercial photography and filming.
General Comments
Numerous comments were received relating to dogs on leashes. This rulemaking does not address dog leash issues.
Concerns were expressed that the proposed regulations will limit hunting and fishing opportunities on State lands. The regulations have been revised to avoid impacting persons legally engage in fishing and hunting.
Commenters opined that the proposed regulations are biased against non-hiking recreationists. Mechanized recreation results in greater potential environmental impacts and therefore necessitates greater restrictions than passive recreational pursuits. The revised regulation lessens the original proposed restrictions on bicycles and snowmobiles.
Commenters opined that the Department should have conducted public hearings and greater public outreach. The rulemaking complied with the State Administrative Procedure Act. The Department provided a 45-day public comment period as required by statute. The regulations were posted on the Department's web site and in the State Register.
Commenters opined that the regulations should establish a minimum level of activity that is acceptable, would require a permit, or would result in prosecution. If an activity is not allowed, then any level of that activity is a violation of the regulations. If a permit is required for an activity to be undertaken on State lands, then any level of that activity requires a permit.
Commenters requested that State parks be kept open to the public. State Parks are managed by the Office of Park, Recreation and Historic Preservation. This rulemaking does not close any State lands under the Department's jurisdiction, but allows the Department to close certain areas due to dangerous and hazardous conditions.
