ENV-23-09-00001-P Lakeview and Black Pond Wildlife Management Areas

6/10/09 N.Y. St. Reg. ENV-23-09-00001-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 23

June 10, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-23-09-00001-P

Lakeview and Black Pond Wildlife Management Areas

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

Proposed Action:

Amendment of Part 79 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, section 11-2101

Subject:

Lakeview and Black Pond Wildlife Management Areas.

Purpose:

To regulate public use of the Lakeview and Black Pond Wildlife Management Areas.

Text of proposed rule:

Repeal Title 6 NYCRR Part 79 and adopt new 6 NYCRR Part 79 as follows:

Part 79

PUBLIC USE OF THAT PORTION OF LAKEVIEW AND BLACK POND WILDLIFE MANAGEMENT AREAS DESIGNATED AS BARRIER BEACH

79.0 Applicability.

The provisions of this Part, in conjunction with Part 51 - Public Use of State Wildlife Management Areas, apply to the barrier beach portion of the Lakeview Wildlife Management Area and Black Pond Wildlife Management Area in Jefferson County. These areas are described as follows:

(a) Lakeview barrier beach. That tract of land comprising a barrier beach approximately 4.5 miles long, bounded by a continuous line extending from a point at the southwest corner of lands of Southwick Beach State Park, southerly along the mean low water level of Lake Ontario to the northwest corner of lands now or formerly owned by J.T. Robey; thence N88°44'E along the boundary of said lands of J.T. Robey 409.76 feet to a point, and continuing N88°44'E approximately 250 feet to the westerly edge of Lakeview Marsh; thence northerly along the edge of Lakeview Marsh to the south boundary of Southwick Beach State Park; thence N86°34'W along said Southwick Beach State Park boundary 450 +/- feet to the point of beginning.

(b) Black Pond barrier beach. That tract of land comprising a barrier beach approximately 4250 +/- feet, bounded by a continuous line extending from a point at the southwest corner of lands of The Nature Conservancy, southerly along the mean low water level of Lake Ontario to the northwestern corner of cottage lots known as North Jefferson Park; thence N87°56'50"E approximately 330 feet along the north boundary of said North Jefferson Park to the northeast corner of said lands; thence continuing N87°56'50"E approximately 200 feet to the edge of the Black Pond wetlands; thence northerly along the edge of said Black Pond wetlands to the south boundary of The Nature Conservancy; thence westerly along The Nature Conservancy south boundary to the point of beginning.

79.1 Definitions.

(a) "Barrier beach" is the zone including both beach and dune.

(b) "Beach" is the area extending landward from the mean low-water line to the toe of a dune.

(c) "Dune" is a ridge or hill of loose, windblown soil the principle component of which is sand.

(d) "Mean low water" is the approximate average low water level for a given body of water at a given location, determined by reference to hydrological information.

(e) "Dune access trail" is a footpath or walkway developed to provide access over dunes to the beach.

79.2 Allowed activity.

Public access to the Lakeview and Black Pond beaches and the associated dune access trails is permitted only between sunrise and 10 PM, unless specified otherwise by official posted notice.

79.3 Prohibited activity.

The following activities are prohibited:

(a) All public access to the dune portion of the barrier beaches, except by permit from the department;

(b) erecting or posting any sign or notice except as permitted by the Department of Environmental Conservation;

(c) building, maintaining, or using a fire;

(d) using devices to create sound, excluding personal electronics that produce sound audible only to the primary user;

(d) erecting or maintaining a camp, tent, or structure of any kind;

(e) defacing, disturbing or damaging any structure, sign, equipment, or other property;

(f) removing, injuring or destroying any plants;

(g) removing any rocks, minerals, soil, or sand;

(h) walking or riding any hoofed animals including, but not limited to horses;

(i) use of any off-road vehicle including, but not limited to trail bikes, motorcycles, snowmobiles, and all terrain vehicles;

(j) engaging in any activity or behavior which may endanger the safety of persons or property;

(k) failure to keep household pets, including but not limited to dogs, caged or leashed (6' or less) and under control at all times; and

(l) possession of alcoholic beverages with intent to consume.

79.4 Noncompliance provision.

Noncompliance with any prohibited act of this Part may result in immediate eviction as well as the right to future use of the Area.

Text of proposed rule and any required statements and analyses may be obtained from:

William Gordon, New York State Department of Environmental Conservation, 317 Washington Street, Watertown, NY 13601, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

A Programmatic Environmental Impact Statement is on file with the Department of Environmental Conservation.

Regulatory Impact Statement

1. Statutory authority:

The Department of Environmental Conservation (DEC or the department) is responsible for the efficient management of the fish and wildlife resources of the state under section 11-0303 of the Environmental Conservation Law (ECL). Pursuant to ECL section 11-2101 the department may promulgate regulations governing public use of state-owned public hunting, trapping, and fishing grounds wildlife management areas (WMAs).

2. Legislative objectives:

The general purpose of the authority contained in ECL section 11-2101 enables efficient management of state-owned (WMAs). Environmental Conservation Law 11-0303 stipulates that the department shall maintain and improve "such resources as natural resources" and that this should include promoting the natural propagation and maintenance of desirable species in ecological balance, and observe sound management practices for such propagation and maintenance on lands and waters of the State. Moreover, the Legislature has directed the department to take into account ecological factors, the importance of fish and wildlife for recreational purposes, and to provide for public safety. The proposed rule making balances the need to protect the environment from long-term harm, while providing for acceptable public use in balance with ecological considerations.

3. Needs and benefits:

The department proposes to repeal the existing regulations pertaining to public use of the "natural beach" portion of the Lakeview WMA and adopt a new Part 79, "PUBLIC USE OF THAT PORTION OF LAKEVIEW AND BLACK POND WILDLIFE MANAGEMENT AREAS DESIGNATED AS BARRIER BEACH."

The eastern shoreline of Lake Ontario features a barrier system of sandy beaches, dunes, embayments, and wetlands. This system extends approximately 17 miles from the Salmon River (Oswego County) north to Black Pond (Jefferson County). The Lakeview and Black Pond WMAs are located within this barrier system in southern Jefferson County. Lakeshore barrier beach and wetland complexes such as these are rare in New York State (NYS). Consequently, the area has been recognized by NYS Department of State as a significant coastal fish and wildlife habitat, and the barrier beach complex on the Lakeview WMA has been designated by the U.S. Department of Interior/National Park Service is a National Natural Landmark. In 1998, both WMAs were designated Bird Conservation Areas (BCAs) as part of the Eastern Lake Ontario Marshes BCA. Most recently, in October 2007, both WMAs have been recommended as a Natural Heritage Area (NHA), as part of a larger Eastern Lake Ontario Dune and Wetland Complex. This NHA recommendation, which is based the Complex's wide-range of significant ecological communities that provide habitat for a variety of endangered, threatened and rare plants and animals, is expected to be finalized soon.

The barrier beach located on the Lakeview WMA is the largest, least disturbed portion of the barrier system remaining on Lake Ontario. About one mile of undisturbed barrier beach also exists on the Black Pond WMA.

The department's proposal is needed to clarify allowable public uses, and to facilitate effective law enforcement. Since Part 79 was adopted and first amended (1970, 1972), the department has acquired additional barrier beach as part of the Black Pond WMA. The proposed rule making will provide additional protection to this portion of barrier beach.

The specific changes that are proposed are as follows:

(1) Definition of important terms associated with the barrier beach, including: "Barrier Beach," "Beach," "Dune," and "Mean low water."

(2) A description of property boundaries of the Black Pond barrier beach. The existing regulatory language describing the boundaries of the Lakeview barrier beach would be retained.

(3) The department proposes prohibited uses, as follows--

• Possession of alcoholic beverages with intent to consume is prohibited.

• Walking or riding any hoofed animals including, but not limited to horses will be prohibited. Horseback riding has become a serious environmental issue on the barrier beaches. Their presence on the dune/beach areas cause sand compaction and erosion, both of which harm these ecologically fragile communities.

• Failure to keep household pets, including but not limited to dogs, caged or on a short leash (six feet or less in length, maximum) and under control at all times. Black Pond, in particular, has acquired a reputation as a public beach where dogs may "run free". Consequently, public safety is jeopardized, as those that do not wish to be near free ranging dogs feel threatened. Also, the barrier beach/dune areas provide important habitats for several shore bird species and other wildlife. Unleashed dogs are a threat to these habitats and wildlife associated with these rare habitats.

• Engaging in any activity or behavior which may endanger the safety of persons or property. Beach areas, Black Pond in particular, have become very popular with the public. This prohibition promotes public safety on the beach and allows for more effective law enforcement to accomplish the same result.

• Building, maintaining, or using a fire. Fires on beach at Black Pond are now common, and often result in dune trespass to collect firewood; littering; and the burning of DEC installed sign-posts and dune protection snow-fence.

• Using devices to create sound, excluding personal electronics that produce sound audible only to the primary user.

• Defacing, disturbing or damaging any structure, sign, fence, equipment, or other property thereon.

• Use of any off-road vehicles including, but not limited to trail bikes, motorcycles, snowmobiles, and all terrain vehicles.

• Swimming or bathing, as long as it occurs on beach areas open for public access, does not pose a threat to the barrier beach areas and their intended purposes. Given the omission of swimming from the revised Part 79 list, it will still be a prohibited act, however, "unless otherwise posted," based on general WMA regulations, 6 NYCRR subdivision 51.6(b).

The department is also proposing to allow picnicking under conditions that do not pose a threat to the ecological integrity of the barrier beaches. The department also proposes to add clear language to allow Environmental Conservation Officers or other enforcement personnel (e.g., NYS Forest Rangers) to evict persons who violate provisions of this Part. Additionally, the department proposes to restrict, via news release and posted notice, barrier beach public access hours as a means to reduce impacts of over-use or abuse of the barrier beach/dunes area. This would mainly apply to Black Pond where "trespassing" on the barrier beach currently is prohibited between 10 PM and dawn via posted notice pursuant to 6 NYCRR subdivision 51.6(e), to prevent after dark beach parties.

4. Costs:

Enactment of this regulation will not result in increased expenditures by the State, its local governments, or regulated parties. The cost of the administration of WMAs is covered under existing operational budgets of fish and wildlife programs. Additional costs are not anticipated.

5. Local government mandates:

This regulation does not impose any program, service, duty, or responsibility on any local government.

6. Paperwork:

This regulation does not impose any application forms, record keeping or reporting requirements on regulated parties.

7. Duplication:

Public use of State WMAs is also regulated by Title 6 NYCRR Part 51. Prohibitions listed in Part 51 apply to all portions of a WMA. New Part 79 is specific to the barrier beach portions of the Lakeview and Black Pond WMAs. Prohibitions listed in Part 79, although similar in nature, are more restrictive to further protect sensitive, undisturbed barrier beach habitat found on these WMAs.

There are no other state and federal requirements regulating public use opportunities on these WMAs.

8. Alternatives:

One alternative would be to take no action and retain the existing Part 79. This regulation has prohibitions which are either unnecessary or redundant. This regulation will continue to impede efficient administration of public use activities on the Lakeview WMAs. Additionally, the sensitive, undisturbed portion of barrier beach on the Black Pond WMA will not be afforded additional protection. The department has rejected this alternative.

A second alternative would be to prepare and implement a special regulation specifically for the barrier beach on the Black Pond WMA. This approach is unnecessary and would result in a duplicate regulation differing in name only. The sensitive, undisturbed barrier beach habitat is essentially the same on both WMAs and can be afforded additional protection with one regulation. Although this approach is acceptable, it is not preferred to new Part 79.

9. Federal standards:

The proposed rule making does not exceed any minimum standards established by the federal government. Special use regulations on state owned WMAs do not involve standards of the federal government.

10. Compliance schedule:

The regulation will be enforced once promulgated.

Regulatory Flexibility Analysis

The Department of Environmental Conservation has determined that this regulation will not impose any reporting, record keeping, costs or other compliance requirements on small businesses or local governments. The purpose of this regulation is to facilitate the administration of public use activities and enforcement of regulations on existing state owned lands. This regulation applies only to the barrier beach portions of the Lakeview and Black Pond Wildlife Management Areas. Small businesses and local governments are not affected in any way by this regulation. Therefore, a full regulatory flexibility analysis is not needed.

Rural Area Flexibility Analysis

The Department of Environmental Conservation has determined that no adverse impact will occur to this rural area as a result of the proposed regulation. The purpose of this regulation is to facilitate the administration of public use activities and enforcement of regulations on the barrier beach portions of the Lakeview and Black Pond Wildlife Management Areas. This regulation will not impose any reporting, record keeping, costs or require any professional services by any public or private entity. Therefore, a full rural area flexibility analysis is not needed.

Job Impact Statement

The purpose of this regulation is to facilitate the administration of public use activities and enforcement of regulations on existing state owned lands. This regulation applies only to the barrier beach portions of the Lakeview and Black Pond Wildlife Management Areas. The Department of Environmental Conservation has determined that this regulation will have no effect on any private or public sector jobs or employment opportunities. The sole purpose of the regulation is to protect the ecology of these areas. Therefore, a full job impact statement is not needed.