ENV-50-15-00010-A Aquatic Invasive Species Spread Prevention  

  • 5/25/16 N.Y. St. Reg. ENV-50-15-00010-A
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 21
    May 25, 2016
    RULE MAKING ACTIVITIES
    DEPARTMENT OF ENVIRONMENTAL CONSERVATION
    NOTICE OF ADOPTION
     
    I.D No. ENV-50-15-00010-A
    Filing No. 474
    Filing Date. May. 05, 2016
    Effective Date. May. 25, 2016
    Aquatic Invasive Species Spread Prevention
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Addition of Part 576 to Title 6 NYCRR.
    Statutory authority:
    Environmental Conservation Law, sections 9-1710 and 03-0301
    Subject:
    Aquatic Invasive Species Spread Prevention.
    Purpose:
    To require that "reasonable precautions" are taken prior to placing watercraft into public waters to prevent the spread of AIS.
    Text of final rule:
    A new 6 NYCRR Part 576 is added in Chapter V, Subchapter C to read as follows:
    6 NYCRR Part 576 Aquatic Invasive Species Spread Prevention
    576.1 Purpose, scope and applicability.
    (a) The purpose of this Part is to establish reasonable precautions such as removing visible plant or animal matter, washing, draining or drying that must be taken by persons launching watercraft or floating docks into public waterbodies to prevent the spread of aquatic invasive species.
    (b) The regulations in this Part apply to persons who launch, or attempt to launch, a watercraft or floating dock into public waterbodies.
    (c) The regulations set forth in this Part shall be in addition to the provisions found in Titles 9 and 6 of the New York Code of Rules and Regulations and local laws relating to the prevention of aquatic invasive species in New York. Those provisions shall apply, unless in conflict, superseded or expressly stated otherwise in this Part.
    576.2 Definitions. As used in this Part, the following words and terms shall be defined as follows:
    (a) Animal means all vertebrate and invertebrate species, in any stage of development, including but not limited to mammals, birds, reptiles, amphibians, fish, mollusks, arthropods, insects, and their eggs, larvae or young, but excluding human beings, dog or other companion animal defined in section 350 of the Agriculture and Markets Law.
    (b) Commissioner means the Commissioner of the Department of Environmental Conservation as well as meaning the Commissioner’s designated agent.
    (c) Department means the New York State Department of Environmental Conservation.
    (d) Floating dock means a removable buoyant platform supported by floating devices or suspended over the surface of a waterbody by anchors or other devices.
    (e) Invasive species means a species that is nonnative to the ecosystem under consideration, and whose introduction causes or is likely to cause economic or environmental harm or harm to human health.
    (f) Launch means to place a watercraft or floating dock into a public waterbody or any inlet or outlet to such waterbody for any purpose, including by trailer or other device or carrying by hand a watercraft into the waterbody.
    (g) Launch site means the specific location along the shoreline of a public waterbody where a watercraft or floating dock is launched.
    (h) Marine and coastal district waters means the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the state, including the Hudson River up to the Governor Malcolm Wilson Tappan Zee Bridge.
    (i) Nonnative species means a species not indigenous to an ecosystem under consideration or to New York State, and includes an individual specimen.
    (j) Person means any individual, firm, co-partnership, association, or corporation, other than the state or a public corporation, as the latter is defined in Article 2A section 66 of the General Construction Law.
    (k) Personal watercraft means a vessel which uses an inboard motor powering a water jet pump as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on, or being towed behind the vessel rather than in the conventional manner of sitting or standing inside the vessel.
    (l) Plant means all plant species, in any stage of development, including, but not limited to trees, shrubs, vines, grasses, sedges, rushes, herbs, mosses, lichens, as well as submergent, emergent, free-floating or floating-leaf plants, and includes any part of the plant.
    (m) Public waterbody or waterbody means lakes, bays, sounds, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State of New York and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface waters), which are wholly or partially within or bordering the state or within its jurisdiction.
    (n) Reasonable precautions mean intentional actions that prevent or minimize the introduction or spread of aquatic invasive species, as specified in section 576.3 of this Part.
    (o) Watercraft means every motorized or non-motorized boat, vessel or vehicle capable of being used or operated as a means of transportation or recreation in or on water.
    576.3 Prohibitions. No person shall launch, or attempt to launch, a watercraft or floating dock into a public waterbody unless the following reasonable precautions of (a) cleaning, (b) draining, and (c) treating have been taken:
    (a) Cleaning. Cleaning shall include all of the following reasonable precautions:
    1. inspecting the watercraft or floating dock and removing any plant or animal, or parts thereof, visible to the human eye, in, on, or attached to any part of the watercraft or floating dock, including livewells and bilges, the motor, rudder, anchor or other appurtenant, equipment or gear on the watercraft or floating dock that may come in contact with the waterbody; or the trailer or any other device used to transport or launch a watercraft or floating dock that may come into contact with the waterbody before launching into a public waterbody; and
    2. any plants, animals, and parts thereof, including bait or other fish parts, visible to the human eye, shall be disposed by depositing these materials in a refuse receptacle where available or other receptacle designated for invasive species disposal, or if no receptacle is available, disposing the materials upland from the mean high water mark of the waterbody and in a manner to avoid contact by the material with the waterbody; and
    (b) Draining. Draining shall include all of the following reasonable precautions:
    1. draining water from the watercraft and the watercraft’s motor, bilge, livewell, bait wells and ballast tanks and other areas of the watercraft capable of holding water before launching a watercraft into a public waterbody at a distance from the waterbody and in such a manner to avoid contact of the drainage with the public waterbody; and
    2. for personal watercraft only, draining water from the cooling system of personal watercraft immediately following its removal from the water by running the motor out of water for five seconds, unless advised differently by the manufacturer and at a distance from the waterbody and in such a manner to avoid contact of the drainage with the public waterbody; and
    (c) Treating. Treating shall include at least one of the following reasonable precautions:
    1. Drying method. Treatment by drying must include one of the following steps:
    i. Removing any boat cover and air dry watercraft, trailer or floating dock out of the water and in an area exposed to the sun or in a heated building for a minimum of five (5) days; or
    ii. Storing watercraft and trailer or floating dock in subfreezing temperatures for a minimum of three (3) days; or
    iii. If the drying methods described in subparagraph (i) or (ii) above and the rinsing methods described in paragraph 2 below are not available prior to launching, towel dry portions of the watercraft hull, engine, trailer and associated equipment that have been in contact with the waterbody prior to launching in another waterbody; or
    2. Rinsing method. Treatment by rinsing must include one of the following steps:
    i. If equipment is available at the launch site or other reasonably accessible location prior to launching, consistent with manufacturer’s directions, spraying/rinsing hull and other external areas or equipment with high pressure (2,500 psi) hot water (140 degrees F for 30 seconds) at a location that does not drain into a waterbody; and if equipment is available at the launch site or other reasonably accessible location prior to launching, consistent with manufacturer’s directions, rinsing/flushing water cooled motors with water for two (2) minutes at a location that does not drain into a waterbody; or
    ii. If equipment is available at the launch site or other reasonably accessible location prior to launching, consistent with manufacturer’s directions, rinsing/flushing the bilge area, live wells, bait wells and other water-holding compartments with hot water at a temperature of 140 degrees F for 30 seconds at a location that does not drain into a public waterbody. If water is being drained via a pump, flushing the bilge area, live wells, bait wells and other water-holding compartments with the hottest water for which the pump is rated; or
    iii. If hot water is not available at the launch site or other reasonably accessible location prior to launching, thoroughly rinsing the boat hull and flush water- holding compartments with the warmest water available at a location that does not drain into a waterbody. Cold water is acceptable only if it is the only water available; or
    3. Painting method to be used prior to launching into marine and coastal district waters only.
    Prior to launching a watercraft or floating dock into a public waterbody within marine and coastal district waters, treatment shall include the application and maintenance of anti-fouling paint, in accordance with applicable laws, rules and regulations, to watercraft hull, floating dock or any associated trailer or equipment being used to launch the watercraft or floating dock into marine and coastal district waters, and upon removing the watercraft from the water, inspecting the watercraft or floating dock and removing any attached plant or animals, or any part thereof, visible to the human eye.
    576.4 Exemptions.
    (a) The provisions of this Part shall not apply to the following:
    1. Plants not otherwise defined in law or regulation as invasive species affixed to or transported in watercraft for use as camouflage for hunting or wildlife viewing purposes.
    2. Bait or baitfish that can legally be used on a waterbody and is possessed consistent with all applicable laws and regulations.
    3. Legally taken game as defined in section 11-0103(2) of the Environmental Conservation Law or fish as defined in section 11-0103(1)(a).
    4. The use of plants or animals for habitat restoration, invasive species control, scientific research, aquaculture, landscaping, gardening, or other activity pursuant to express written approval by the department, consistent with all applicable laws and regulations related to their use, possession or harvest.
    (b) The provisions of subdivision (c) of section 576.3 of this Part shall not apply to any watercraft and associated equipment or floating dock that is re-launched from a launch site into a public waterbody within the bounds of any permanent barriers impassible to watercraft which was, prior to launching, removed from the same launch site without having been launched into any other waterbody from any other launch site.
    576.5 Penalties and enforcement.
    Any person who violates the provisions of this Part shall be liable for all penalties and other remedies provided for in the Environmental Conservation Law including section 71-0703(10).
    576.6 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:
    Non-substantive changes were made in sections 576.1(b), (c) and 576.3(c), (2)(i)-(iv).
    Text of rule and any required statements and analyses may be obtained from:
    Leslie Surprenant, NYS DEC, Division of Lands and Forests, 625 Broadway, Albany, NY 12233, (518) 402-8980, email: leslie.surprenant@dec.ny.gov
    Additional matter required by statute:
    A Negative Declaration was prepared 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
    Non-substantive changes were made to the regulation that did not necessitate revision to the previously published RIS, RFA, RAFA and JIS. These minor changes consist of text clarification and grammatical corrections.
    Initial Review of Rule
    As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year, which is no later than the 3rd year after the year in which this rule is being adopted.
    Assessment of Public Comment
    The Department received 22 individual public comment letters during the public comment period held December 16, 2015 through February 1, 2016. Of these, 16 commenters supported the proposed regulations while 6 commenters opposed the regulations. A total of 134 issues were raised within the 22 comment letters.
    In response to the comments received, staff made the following nonsubstantive changes to the Express Terms: Minor text change to Purpose, scope and applicability section 576.1 subdivisions (b) and (c); Minor change to Prohibitions section 576.3, subdivision (c), paragraph (2), subparagraphs (i-iv).
    For a listing of all comments received and Department responses please contact the DEC Invasive Species Coordination Section at 519-402-9405 or see: http://www.dec.ny.gov/regulations/propregulations.html#recent
    General comments
    57 issues were raised, including the following:
    Comment: As written, we opine that this draft proposal is unreasonable, and sabotages the intended, cooperative goal to curtail mechanical spread of AIS between water bodies.
    Response: DEC staff disagree. Clean, Drain, Dry has been long recognized as the standard. The “reasonable precautions” were required in statute and draw from nationally recognized standard protocols including the ANS Task Force white paper “Voluntary Guidelines to Prevent Introduction and Spread of Aquatic Invasive Species: Recreational Activities”.
    Comment: Draft Part 576’s focus solely on clean boats and docks omits addressing removals and other sources of ‘infection’.
    Response: The law which authorizes the development of these proposed regulations specifically indicates that “reasonable precautions” must be taken prior to launch, hence the focus of the regulation.
    Comment: We are troubled by the State’s own admission that the public/user is generally uneducated and unable to distinguish native from non-native, so “all plant and animal material” become indictments if on or in watercraft. Our earlier comments endorsed programming to constructively educate boaters to be able to understand the consequences of introductions and to be better informed to identify the AIS plants of concern.
    Response: By removing any plant or animal, or parts thereof, visible to the human eye, distinguishing between native and nonnative species is not required. DEC staff recognize the importance of education programs and provides significant AIS spread prevention and outreach on its website.
    Comment: For this regulation “launching” and “removal” should be treated equitably in the context of the goal.
    Response: The law which authorizes the proposed regulations specifically states that “reasonable precautions” must be taken by boaters prior to launch, hence the focus of the regulation.
    Comment: While we advocate effective and efficacious protection of the ecosystem, we first want to see a substantive State effort in educating the general public.
    Response: DEC recognizes the importance of education programs, such as boat steward programs and has implemented E/O and boat steward programs. The proposed regulations are required under statute.
    Comment: On busy days such as holidays or during the summer the little added time it takes to do the terms provided will lead to a clogged launch site and angry boaters.
    Response: The proposed regulations provide “reasonable precautions” that must be taken prior to launch. These activities do not all need to be accomplished on the launch itself.
    Comment: We believe that the regulations, as proposed, do not fully comport with various observations made in the Regulatory Impact Statement, which we agree with, which states that the intent is to limit the requirements of the regulations to instances when watercraft, floating docks, trailers and equipment are transported from one waterbody to another.
    Response: While transport between waterbodies is indeed a high risk, transport within a waterbody is also a risk with potential to spread aquatic invasive species. Hence, the treatment exemption stated in 576.4(b) is specific to subdivision (c) of section 576.3 of this Part and applies only to watercraft and floating docks that are re-launched from the same launch site previously removed from without having launched to any other waterbody.
    Purpose, scope and applicability
    6 issues were raised, including the following:
    Comment: The use of the term “public waterbodies” makes the application of these regulations unclear. We would like to see the word “public” eliminated from the regulations entirely.
    Response: The law which authorizes the proposed regulations specifies “public waterbody”, hence the focus of the regulations.
    Comment: Clarify the responsible party. By saying that the regulations apply to all sites, this implies that the site is responsible for taking reasonable precautions. It would be much clearer if the sentence read “The regulations in this Part apply to users of all sites from which a watercraft or floating dock can be launched into public waterbodies…”
    Response: DEC staff agree, change will be made. In addition, 576.1 (a) states “The purpose of this Part is to establish reasonable precautions such as removing visible plant or animal matter, washing, draining or drying that must be taken by persons launching watercraft or floating docks into public waterbodies to prevent the spread of aquatic invasive species”.
    Definitions
    20 issues were raised, including the following:
    Comment: We would ask for clarification of the term “public waterbodies” to include all navigable waters.
    Response: The definition of “public waterbody or waterbody” as used in the proposed regulation, is identical to the definition of “waters” or “waters of the State” in ECL 17-0105(2).
    Comment: Many boaters and lake users may not be aware of current AIS, therefore it would be helpful to reference the Part 575 regulations lists.
    Response: In addition to the list of prohibited and regulated invasive species identified in 6 NYCRR Part 575, other aquatic invasive species exist.
    Comment: 576.2 (e) The trouble with this description is that it fails to address the three types of water that connect through New York State. Salt water, brackish water and fresh water have completely different ecosystems, and foster growth of specific species indigenous to those waters.
    Response: DEC staff agree that salt, brackish and fresh water support different ecosystems and therefore largely different invasive species pose a threat to the three systems. However, the basic principles of Clean, Drain and Treat identified in the proposed regulations will greatly reduce potential introduction and spread of aquatic invasive species in all three systems.
    Comment: In 576.2(l), the plant definition should also list algae.
    Response: DEC staff believe the definition of “plant” to be adequate as written. The generally accepted definition of “algae” is any of a group of chiefly aquatic nonvascular plants with chlorophyll often masked by a brown or red pigment, hence they are included already by definition.
    Comment: All accessories and gear used by those fishing, paddling, sailing, etc. that also come into contact with the water should be included. Create a separate definition and refer to “watercraft and all accessories”.
    Response: While DEC staff agree that accessories and gear may transmit invasive species, the law which authorizes the proposed regulations specifies “watercraft” and “floating docks”, hence the focus.
    Prohibitions
    31 issues were raised, including the following:
    Comment: Drying methods scripted impose an unreasonable burden on anglers and boaters entering the water on a daily basis.
    Response: DEC staff disagree. DEC staff believe that the treatment methods included in the proposed regulations are practical and reasonable, and the proposed regulations will be effective if implemented.
    Comment: Most boaters may not have access to high pressure (2500 PSI) hot water (140 degrees F 30 seconds) spray decontamination stations. Some of these boaters may use commercial self-service car wash stations. In that case, the water pressure is only 1100 PSI or lower. We may want to develop and establish some simple rinsing methods.
    Response: DEC staff agree, hence the inclusion of several treatment options in the proposed regulations.
    Comment: I have a boat I want to take out in marine waters but this means I would have to get my boat treated. This is a good idea but consider the cost of what this will cost the public.
    Response: DEC staff acknowledge. No treatment is required, other than the maintenance of “anti-fouling paint” if such paint is selected as a spread prevention method; 576.3(c) provides additional treatment methods that may be selected, see 576(c)(1) –drying, and 576(c)(2) -rinsing.
    Comment: In the section 576.3(c) “Treating”, boaters have the option of choosing a listed method to treat their watercraft. All of the options posed are necessary to be effective and boaters should be required to do all of them.
    Response: DEC staff believe that the treatment methods included in the proposed regulations are practical, but at the same time provide flexibility to the boating community, and will be effective if implemented.
    Comment: The fact that antifouling paint remains classified as a pesticide in the State of New York has caused most small businesses to drop the practice of applying bottom paint. It should not be obligatory to use antifouling paint, provided that the bottom of the boat is applied with wax, or some other type of approved substance that allows hydrodynamic improvement and discourages fouling.
    Response: DEC acknowledge. Use of antifouling paint is an option, not requirement, see “or” immediately prior. The regulations specifically only require that in treating the boat or floating dock that “at least one” of the three methods is used. See 576.3(c).
    Exemptions
    12 issues were raised, including the following:
    Comment: Subdivision (b) of proposed 576.4 should either be expanded to exempt all watercraft and floating docks from all the requirements of 576.3 in its entirety if they are being relaunched into the same waterbody, or a new subdivision (c) should be added to provide that full exemption.
    Response: DEC staff disagree because there is a risk of spreading AIS to other parts of that waterbody, and believe the current language in 576.4(b) is sufficient.
    Comment: We believe that the State of New York should not be exempted from this legislation.
    Response: The definition of “person” in the proposed regulation is constrained by Article 9 of the ECL in defining “person” in Part 576 regulations. While the State is exempted from this definition, State staff will take reasonable precautions that are consistent with these regulations to prevent the spread of AIS.
    Penalties and enforcement
    8 issues were raised, including the following:
    Comment: This legislation is lacking in the enforcement of the prohibitions listed.
    Response: DEC staff disagree, the law which authorizes the proposed regulation is quite specific in regard to enforcement as per 71-0703 subdivision 10.
    Comment: A conversation with the public needs to start before the enforcement and regulation of this legislation. People need a chance to participate and understand the need for spread prevention of AIS before they are required to take immediate action.
    Response: DEC staff recognize the importance of education programs such as boat stewards. DEC staff have conducted E/O related to AIS for several years, the agency web site contains significant E/O content focused on AIS and boat transport, existing boat steward programs utilize handouts developed by the DEC in collaboration with OPRHP.

Document Information

Effective Date:
5/25/2016
Publish Date:
05/25/2016