HBR-24-08-00008-P Great Sacandaga Lake Access Permit System

6/11/08 N.Y. St. Reg. HBR-24-08-00008-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 24

June 11, 2008

RULE MAKING ACTIVITIES

HUDSON RIVER - BLACK RIVER REGULATING DISTRICT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HBR-24-08-00008-P

Great Sacandaga Lake Access Permit System

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

Proposed action:

Repeal of Part 606 and addition of new Part 606 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 15-2103, 15-2105 and 15-2109(1)

Subject:

Great Sacandaga Lake access permit system.

Purpose:

To improve the administration of the access permit system.

Substance of proposed rule (Full text is posted at the following State website: www.hrbrrd.com):

The following is a summary only, and has been prepared solely for purposes of compliance with the New York State Administrative Procedure Act (SAPA) for rule making. The summary is a generalization of the draft rules and as such may not be construed as complete, definitive, or binding on the District or permit holder.

606.1 DEFINITIONS

This section enumerates the many terms and phrases used in the rules and their meanings for interpretation of the rules.

606.2 PURPOSE AND SCOPE

This section establishes that the permit system and the supporting rules are designed to allow eligible persons to voluntarily apply for and receive provisional, temporary and revocable written permission, via a permit, to access the Great Sacandaga Lake (Reservoir). The rules will be effective upon approval by the Department of Environmental Conservation. When the proposed rules take effect, they are to supercede prior official rules governing the permit system. If any part of these rules is found to be unlawful, the unlawful provision will be removed.

606.3 POWERS OF THE BOARD

The Board's powers include the following: 1) to maintain and operate the reservoir, 2) to grant temporary access to State lands around the Lake, 3) to administer a permit system for such temporary access,

606.4 GENERAL - APPLIES TO ALL USERS

The proposed rules apply to all persons who enter and use the Reservoir and surrounding public lands. Violations of these rules will be enforced. Use of the Reservoir and surrounding public lands are at the user's own risk. Neither New York State nor the District is liable for damages or losses, including losses from other users and their guests. Nothing in these rules is to be interpreted as an entitlement to access the Reservoir. If access to the Reservoir is granted through rights contained in a deed, the eligible property owner is bound to follow these rules.

Access Permits are provisional, temporary and revocable. Access Permits do not authorize access to private land or exclusive use of the access area or the Reservoir. Use of permit areas is limited to uses described on the permit, and included in the Rules. Only signs authorized by the Regulating District and state or federal agencies are allowed. No signs, posted permits, and boundary markers may be moved or destroyed.

Camping is prohibited on access areas. No garbage, debris, or sewage may be disposed on access areas or into the Reservoir without a NYSDEC permit. No vehicle may be abandoned or stored on access areas. No unregistered vehicles are allowed on access areas. Boats may be moored only to docks or moorings. Permit holders may prohibit the parking of vehicles on their permit areas. Number of watercraft and boats depend on the width and type of the permit area. Permit holders are also prohibited from construction of permanent structures, altering the flow of water, causing erosion, mining, and other activities within the permit area. Permit areas are accessible to the permit holder and guests. Each permit holder is responsible for maintaining clean and sanitary conditions.

606.5 ACCESS PERMIT SYSTEM

Permits may be issued for applications completed by eligible applicants. Seven types of permits are available: 1) Recreational - Front Lot, 2) Recreational - Back Lot, 3) Commercial (Non-Marina), 4) Commercial (Marina), 5) Association, 6) Municipal, and 7) Non-Use.

The cost of the permit system is to be sustained by permit holder fees. Fees for permits depend upon the permit requested. Rules establish when and how fees will be adjusted.

The Board is authorized to set and modify widths of permit areas. Widths of permit areas by permit type are provided in the rules. Permit area widths will be measured at an elevation of 771 feet above sea level. All docks, floats, moorings, and boats must be confined to within Permit areas.

The permit is not a right or interest in property. The permit is subordinate to the District's Authority. The permit may only be used for activities and uses authorized in the permit and the rules. The District may access the permit areas at all times for any lawful purpose. Permits are issued to the applicant only. The applicant must be an owner of real property within specified areas around the Reservoir. New owners of eligible properties may apply for a permit.

All activities in permit areas are subject to federal, state, and local laws. Work permits must also comply with the requirements of the Great Sacandaga Lake Historic Properties Management plan. The issuance of a permit may not interfere with the District's right to regulate the Reservoir, its water levels and management.

The District has the right to compel compliance and take enforcement actions against violations of the rules. Violations consist of failure to comply with the rules or any conditions of the permit, an encroachment, or actions that are detrimental to the Reservoir or public health. Actions that harm the public health are subject to a suspension of the permit without notice. Permit holders will be notified of other violations, which permit holders must address. Permit holders may apply to the District's appeals process. If deemed necessary by the Board, permits may be revoked for violations. The Board may lawfully compel compliance to enforce violations.

606.6 ACCESS PERMIT APPLICATION

Only owners of eligible properties may apply for a permit. The applicant must demonstrate proof of eligibility. Eligibility depends on the permit applied for.

The District reserves the right to assign and modify permit areas by type of permit. The District will maintain a waiting list for Back Lot permit requests. Property owners will be registered on the list in the order their request was made and received. It is the registrant's responsibility to ensure their information is correct. No guarantees can or will be made about the availability of a Back Lot permit. Notice of availability will be sent to the first registrant on the waiting list. A registrant may be removed from the list for the following reasons: 1) has been issued a permit, 2) was notified and did not reply, 3) the application was rejected, 4) the eligible property was sold. Exceptions exist whereby a registrant may not be removed from the waiting list.

Applicants must sign and certify that their applications are accurate, is a lawful owner of eligible property, and that they understand the rules. No action will be taken on incomplete applications. Commercial permits will require liability insurance, which must include the District as an insured party. No variances will be given for any insurance requirements. Commercial permit renewals will require proof of compliance from all applicable agencies and a detailed layout of improvements to be made on access areas. The District may amend plans for access permit areas.

The District and its staff will determine if the application is complete and compliant with the rules. Access permits expire at 11:59 on March 14 of each year. No guarantees will be made by the District that an access area is suitable for a particular use. Access permits will indicate with other information the location of the access area. The District has the right to set and adjust access area widths in a reasonable manner. Submerged lands are not part of the access area.

Renewal applications will be mailed by the District on or before February 1st. Additional information may be required by the District for permit renewal. Permit holders who fail to respond by the expiration date will be notified a second time, after which they will have 30 days to respond. If permit holder fails to respond to a third notice, the permit will be relinquished and the permit holder must remove all of his possessions from the Permit Area. If the permit holder fails to do so, at the permit holder's expense, the District will remove all materials from the access area.

Permit holders who sell eligible properties will have their permits terminated. New owners of such property may apply for an access permit. Renewal of commercial permits will require additional information and proof of insurance. Permit holders may apply for relocation to new access areas, or request to have their access area re-designated in certain circumstances. Permit holders may request to have their Front Lot access area reduced.

Permit holders aggrieved by a District decision may file an appeal within 45 days of such decision. The District will review and if necessary investigate the issues. Based on the rules and the evidence, the Executive Director may grant relief in writing. If the relief is not satisfactory, the permit holder may appeal to the Board. Upon hearing evidence and public comments, the Board will render a decision within 75 days. The permit holder, upon the Board's decision, may seek judicial review under Article 78.

606.7 PERMIT FEES

The full cost of the permit system will be covered by permit fees. Fee revenues and permit system costs will be reconciled for each three-year budget cycle. Depending on the permit type, certain fees apply.

A completed application consists of a signed and filed application, supporting documentation, and full payment of applicable fees. No refunds will be given for incomplete work permits. Permit fees will be fixed annually and adjusted every 3 years. The Board reserves the right to adjust fees and fee structures to cover administrative costs. Consideration of such adjustment will be publicly noticed. The next adjustment is scheduled for consideration in 2009 for implementation in 2010.

606.8 SITE ALTERATIONS PERMIT APPLICATION

Projects requiring a work permit may not commence until District approval is provided. All structures must be temporary and removable. All other necessary federal, state, or local permits must be secured by the permit holder. Work permit applications will include a detailed plan and payment of a fee. An APA co-application fee will be paid for any work requiring Adirondack Park Agency Section 814 approval. Permit holders seeking a work permit that requires compliance with SEQRA are responsible for SEQRA compliance and related expenses. Ground disturbances require a work permit and may require a Phase 1B field reconnaissance study. All work activities are subject to field inspections by the District. Activities requiring or not subject to a work permit are enumerated in the Appendices. Standards for construction of stairs and landings are also listed in the Appendices.

The placement of docks requires a work permit. Docks must be, among other standards, floatable, removable, and non-hazardous to aquatic life. Commercial docks are subject to additional standards. Allowable dock configurations are specified in the rules and appendices. Boat canopies are permissible only on certain dock configurations and must meet certain standards. Moorings, swim floats, and ice fishing shacks may be placed only on certain access areas and during certain times of the year. All non-conforming temporary structures before the effective date of the rules may remain non-conforming until replaced. The placement of certain signs will require a work permit. A special activity permit must be approved for placement of canopies and portable toilets.

The proposed rules include the following 6 Appendices:

- Access Permit Fees: This appendix covers miscellaneous; usage and work permit fees and the methodology for determining fees (Note that all permit fees have been frozen through December 31, 2009).

- Authorized Work Activities and Work Permit Fees: This appendix covers the types of activities that do and do not require work permits and the applicable fees.

- Allowable Floatable Dock Configurations: Graphics on acceptable configurations for floating docks.

- Allowable Stairway and Stairway Landing Configurations: A graphic on acceptable configurations for stairways and stairway landings.

- Guidelines For Permit System Appeals To The Board: Guidelines that set forth the procedure for making appeals to the Board of the Hudson River - Black River Regulating District.

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

Glenn A. LaFave, Executive Director, Hudson River-Black River Regulating District, 737 Bunker Hill Rd., Mayfield, NY 12117, [phone], e-mail: [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.

Regulatory Impact Statement

1. Statutory Authority

The Hudson River - Black River Regulating District (“the District”) is a public corporation created pursuant to Environmental Conservation Law (ECL) Article 15, Title 21. ECL Section 15-2103 declares, “ … river regulating districts may be created …” pursuant to ECL Title 21 of Article 15 “ … to construct, maintain and operate reservoirs within such districts …” ECL section 15-2105 sets forth direction and criteria for the organization of the boards of river regulating districts and pursuant to ECL section 15-2109(1), “The board shall have the power to make all necessary rules and regulations which shall be effective when approved by the department.”

2. Legislative Objective

The District was created to regulate the flow of the Hudson River and Black River, primarily for the purposes of flood control and augmentation of low flows. One of the reservoirs operated by the District is the Great Sacandaga Lake, formerly the Sacandaga Reservoir. After the creation of the reservoir, nearby property owners requested access to the reservoir over these lands of the State of New York. Under an Access Permit System, the District makes segments of the shoreline owned by New York State available for private use. The District issues annual commercial and non-commercial permits to neighboring landowners that permit the landowners to use designated sections of the Reservoir area.

The current Rules and Regulations governing the use, operation and maintenance of the Great Sacandaga Lake, 6 NYCRR Part 606, were approved on July 13, 1992 by the New York State Department of Environmental Conservation (NYSDEC), adopted October 19, 1992 by Resolution of the Board of the Hudson River-Black River Regulating District, and became effective January 27, 1993.

The proposed rule revisions are consistent with the current rules and regulations previously approved by the NYSDEC to administer the Access Permit System.

3. Needs and Benefits

Needs:

The Proposed Rules are required to allow for the efficient administration of the Access Permit System given the complexity of the process and the requirements to effectively and fairly implement and enforce the rules. Saratoga Associates, Landscape Architects, Architects, Engineers and Planners, P.C. were retained by the District to revise the Access Permit System Rules. As part of that process, all available historical documentation produced at the District pertaining to the establishment and administration of the Permit System was analyzed, including, but not limited to, resolutions, internal policy letters, memorandums and directives. The purpose of this analysis was to identify any practices of the District related to the Permit System that were not specifically detailed in the existing rules and therefore should be included to improve the efficiency, predictability, understanding and fairness of the administration of the Permit System. An example of a clarification includes the application process for both obtaining an Access Permit as well as a Work Permit. The existing rules do not discuss the application process or what is specifically required to apply for an Access or Work Permit.

In addition, the current rule revision process is serving to update the fees associated with administering the Permit System. The current Permit System fees have been challenged in recent litigation brought against the District. The District is in the process of determining the full cost associated with administration of the Access Permit System and enforcement of the rules, including, but not limited to, costs associated with determining the eligibility of applicants, reviewing property deeds, surveying and staking the Permit Area, creating and maintaining a drawing of each Permit Area, creating and maintaining maps of the permit areas and eligibility area, furnishing and erecting signs on the Permit Area, Permit Area maintenance, management of encroachment issues, and management of work order requests and work permits.

Benefits:

These Proposed Rules will improve the efficiency, predictability, understanding and fairness of the administration of the Permit System for the benefit of current and future access permit holders as well as the District itself.

4. Costs

Cost to Regulated Parties

As stated above, one reason for the Proposed Rules was to develop a cost methodology to ensure the Permit System will pay for itself. The regulated parties do not pay the costs of reservoir operations such as erosion control, shoreline stabilization or dam operations, maintenance and repairs. Therefore, as part of the analysis of the existing rules, the cost of the administration of the Permit System and enforcing the rules was conducted and will continue until 2009. This cost analysis is critical to determine the “true” costs of administering the Permit System and enforcement so that current and future access permit holders will be charged fees that will cover the costs of administering the Permit System and enforcement. The analysis of the Permit System costs will not be fully completed until 2009.

Cost to Agency

The development of the Proposed Rules has cost the District approximately $160,000. This amount includes contract costs paid to consultants to evaluate the current access Permit System. The Proposed Rules are not expected to result in additional costs for implementation beyond what the District currently incurs for administration, outreach, education, monitoring Permit Holder's compliance with rules and enforcing the rules. The rules are actually expected to increase the efficiency of administration and enforcement. If rules are clear and better understood, compliance is more cost effective than enforcement.

Cost to Local Governments

There will be no costs to local governments for the implementation and continuation of the Proposed Rules due to the fact that local governments will continue to be exempt from the need to pay fees for the utilization of access areas. In addition, the District will be solely responsible for administering and enforcing the rules, with the municipalities having no responsibility for administration. It is important to note that the District pays approximately $2.3 million in property taxes annually to the municipalities and other taxing jurisdictions around Great Sacandaga Lake.

5. Local Government Mandates

This rule making will not impose any program, service, duty or responsibility upon counties, cities, towns, villages, school districts, fire districts or other special districts.

6. Paperwork

As currently required, under the Proposed Rules, eligible landowners shall have the ability to voluntarily apply for an Access Permit of any type, a work permit, or to be placed on the Waiting List for any designated Access Permit Area as required by Sections 606.6 and 606.8 of the Proposed Rules.

Applications for Access Permits and Renewals: Shall include, but not be limited to, the following information: all names of the Owners of Record, identification of the Eligible Property, and two mailing addresses to which the District may send official notices. For new access permits and access permit renewals, each Owner of Record shall sign and certify the application under penalty of perjury whereby it is certified, ii) that all information supplied therein is true and accurate, and iii) that each Owner of Record understands and agrees to adhere to the rules of the Access Permit System.

Applications for Work Permits: As is the current process, the applicant shall be required to submit a detailed plan that describes dimensions, materials to be used, construction methods, proposed timetables, location of modifications and other relevant information. The District may request additional information from the applicant as deemed necessary to determine an action on the application.

7. Duplication

No rules or other legal requirements of either the State or federal government exist at the present time which duplicate, overlay or conflict with the Proposed Rules. Many of the Proposed Rules actually comply with those of existing agencies. Due to the fact that other regulatory agencies such as the Adirondack Park Agency, New York State Department of Environmental Conservation, and the New York State Department of Health have jurisdiction over the region, permits from each agency may be required for a specific action occurring on State lands subject to an Access Permit.

8. Alternatives

The first alternative is the “null alternative” or the “do nothing” alternative. It was quickly determined that the Permit System Rules require revisions and the District could not continue to effectively manage the Access Permit System without the Proposed Rules in place.

The process for updating the rules resulted in multiple drafts. The first Draft was prepared and subject to analysis by the general public. Multiple public meetings were held on the revised drafts to obtain optimum public feedback. The District has met with several stakeholders including the Great Sacandaga Lake Association, the Supervisors of the towns bordering the Lake and other local and regional officials to discuss this issue. An Advisory Committee was established to conduct additional reviews and provide recommendations. The current Proposed Rules reflect significant input by the general public and Advisory Committee. To date, the rules are currently in their fourth version, all of which have been subject to public review.

9. Federal Standards

The federal government has set no standards for the same or similar subject areas addressed by the Proposed Rules. It is important to mention that the Federal Energy Regulatory Commission (FERC) license requires the District to notify FERC during a rule making process. FERC has issued a letter to the District stating that the Proposed Rules will not affect or represent a change in reservoir operations and does not affect the existing FERC license.

10. Compliance Schedule

Upon the effective date of the Proposed Rules, all regulated parties shall be required to comply with the Proposed Rules. This rule making process is unique, as NYSDEC is required to provide the final approval of any rule revision made by the District.

Permit holders will not be required to comply with the revised Permit System fees until 2010, the current estimated date for compliance as the Permit System fees have been frozen until 2010.

Regulatory Flexibility Analysis

Pursuant to SAPA § 202-b(3)(a)(ii), the Hudson River Black River Regulating District (the “District”) is seeking an exemption from the preparation of a Regulatory Flexibility Analysis for Small Businesses and Local Governments (RFASB/LG)) due to the fact that the Proposed Rules will not impose adverse economic impacts or recordkeeping compliance requirements on small businesses or local governments. Pursuant to the requirements of SAPA, the following represents the statement of findings and the reasons upon which the finding was made that the Rules would impose no adverse economic impacts.

Small Businesses

The affected parties will include both commercial and non-commercial parties. The majority of the affected parties will include non-commercial parties. The commercial parties will primarily include marinas and restaurants located on and benefiting from the Great Sacandaga Lake. These commercial parties obtain Access Permits to allow for legal access to the Great Sacandaga Lake by their customers and for the operation of marinas and other water-dependent commercial operations.

No additional paperwork beyond what is already generally required will be necessary for compliance with the Proposed Rules. The Proposed Rules are not expected to result in an increased need for small businesses to hire professional consultants for compliance.

As stated in the RIS, one reason for the Proposed Rules was to develop a cost methodology to ensure the Permit System will pay for itself. The regulated parties do not pay the costs of reservoir operations such as erosion control, shoreline stabilization; and dam operations, maintenance, and repairs. Therefore, as part of the analysis of the existing Rules, the cost of administering the Permit System and enforcing the Rules is being recorded and will continue until 2009. This cost analysis is critical to determine the “true” costs of the Permit System so that current and future access permit holders will be charged fees that will cover the costs of administering the Permit System and enforcing the Rules. The analysis of the Permit System costs will not be fully completed until 2009.

The Proposed Rules will not require small businesses to purchase or lease new computer equipment, hardware or software. The Proposed Rules will not require small business to prepare any additional reports or keep additional records. The Proposed Rules will set new and renewal Access Permit fees which will be based upon the type of permit and the width of the access permit area in question.

Local Government Mandates

There will be no costs to local governments for the implementation and continuation of the Proposed Rules due to the fact that local governments will continue to be exempt from the need to pay fees for the utilization of access permit areas. In addition, the District will be solely responsible for administering and enforcing the Rules, with the municipalities having no responsibility for administration or enforcement. It is important to note that the District pays approximately $2.3 million in property taxes to the municipalities and other taxing jurisdictions around Great Sacandaga Lake.

This rule making will not impose any program, service, duty or responsibility upon counties, cities, towns, villages, school districts, fire districts or other special districts.

Rural Area Flexibility Analysis

Pursuant to SAPA § 202-bb(2), in developing a rule, agencies must consider utilizing approaches to accomplish the objectives of a statute while minimizing any adverse impact on public and private sector interests in rural areas. For the purposes of this SAPA evaluation, a rural area is defined as a county having a population less than 200,000. The three counties with corporate boundaries within 1 mile from the reservoir boundary line of the Great Sacandaga Lake include Hamilton, Fulton and Saratoga Counties. Of these counties, Hamilton and Fulton each have a population of less then 200,000 persons, and therefore, the potential impacts on these counties must be considered.

Pursuant to SAPA § 202-bb(4)(a)(ii), the Hudson River Black River Regulating District (the “District”) is seeking an exemption from the preparation of the Rural Area Flexibility Analysis (RAFA) due to the fact that the Proposed Rules will not impose adverse impacts or recordkeeping compliance requirements on public or private entities in rural areas. Pursuant to the requirements of SAPA, the following represents the statement of findings and the reasons upon which the finding was made that the rule would impose no adverse impacts or recordkeeping compliance requirements.

Small Businesses

The affected parties will include both commercial and non-commercial parties. The majority of the affected parties will include non-commercial parties. The commercial parties will primarily include marinas and restaurants located on and benefiting from the Great Sacandaga Lake. These commercial parties obtain Access Permits to allow for legal access to the Great Sacandaga Lake by their customers and for the operation of marinas and other water-dependent commercial operations.

No additional paperwork beyond what is already generally required will be necessary for compliance with the Proposed Rules. The Proposed Rules are not expected to result in an increased need for small businesses to hire professional consultants for compliance.

As stated in the RIS, one reason for the Proposed Rules was to develop a cost methodology to ensure the Permit System will pay for itself. The regulated parties do not pay the costs of reservoir operations such as erosion control, shoreline stabilization; and dam operations, maintenance, and repairs. Therefore, as part of the analysis of the existing Rules, the cost of administering the Permit System and enforcing the Rules is being recorded and will continue until 2009. This cost analysis is critical to determine the “true” costs of the Permit System so that current and future access permit holders will be charged fees that will cover the costs of administering the Permit System and enforcing the Rules. The analysis of the Permit System costs will not be fully completed until 2009.

The Proposed Rules will not require small businesses to purchase or lease new computer equipment, hardware or software. The Proposed Rules will not require small business to prepare any additional reports or keep additional records. The Proposed Rules will set new and renewal Access Permit fees which will be based upon the type of permit and the width of the access permit area in question.

Local Government Mandates

There will be no costs to local governments for the implementation and continuation of the Proposed Rules due to the fact that local governments will continue to be exempt from the need to pay fees for the utilization of access permit areas. In addition, the District will be solely responsible for administering and enforcing the rules, with the municipalities having no responsibility for administration or enforcement. It is important to note that the District pays approximately $2.3 million in property taxes to the municipalities and other taxing jurisdictions around Great Sacandaga Lake.

This rule making will not impose any program, service, duty or responsibility upon counties, cities, towns, villages, school districts, fire districts or other special districts.

Job Impact Statement

A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the Proposed Rules that they will not have an adverse impact on jobs and employment opportunities. This is because the Proposed Rules are a codification of many of the existing procedures of the Hudson River Black River Regulating District (the “District”), the fact that participation in the Permit System is voluntary and the Proposed Rules will continue to allow eligible applicants to apply for and obtain Access Permits.