Transport of Aquatic Invasive Species to and from Department Boat Launches.
Purpose:
To prevent the spread of aquatic invasive species to and from waters that the Department provides boating access to.
Text or summary was published
in the January 8, 2014 issue of the Register, I.D. No. ENV-01-14-00024-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Phil Hulbert, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8894, email: pxhulber@gw.dec.state.ny.us
Assessment of Public Comment
Over 150 comments were received. The majority of commentors were in favor of the proposal, although some commented that the regulatory should go beyond DEC administered and questions DEC’s abilities to enforce these regulations. This assessment includes all of the substantive issues raised and DEC’s response.
Comment: The proposed regulations are too limited and should apply to all boating access facilities as well as boats and trailers transported outside of these facilities.
Response: DEC has elected to promulgate regulations for boat launching facilities that it administers and has direct control over. Because these are new requirements, DEC has determined that it should focus its resources to launches on state lands and continue to conduct outreach and xxx as this program xxx. DEC will continue to cooperate with and encourage other state agencies to develop similar regulations for the sites they administer.
Comment: How will these regulations be enforced? What are the fines?
As with all DEC laws and regulations, they will be enforced using the existing network of DEC Environmental Officers and Forest Rangers. They may also be enforced by any peace or police officer. Fines for violation of these regulations are $250 or 15 days in jail. This is the standard penalty for violations of Fish and Wildlife Law.
Comment: Since DEC boat launches are not supervised 24 hrs each day, 7 days per week during the boating season these regulations are unenforceable.
Response: The regulations will be enforced in the same fashion that all of the Fish and Wildlife laws are enforced, through the actions of our Environmental Conservation Officers and Forest Rangers with the assistance of the public. Just like every angler cannot be checked for a fishing license, it is unreasonable to expect every boat to be checked for invasive species. It is anticipated that through priority patrols of boat launches with known AIS problems and the general word of mouth that DEC is indeed enforcing these regulations, that the already small percentage of boaters that transport AIS will be further reduced.
Comment: These regulations are limited in scope and effectiveness. New York needs a comprehensive statewide AIS prevention, interdiction, control and education program.
Response: These regulations are not intended to be a stand-alone product, but rather a component of a comprehensive statewide effort to combat the spread of AIS using public and private partners. DEC is currently in the process of updating the New York State AIS Management Plan which will provide a comprehensive strategy.
Comment: Without wash stations, it will be impossible to clean all visible invasives off a boat. Will a hose with water be provided to wash down boats at launch ramps?
Response: Rinse water is provided at some DEC campground launches and marine launches and its availability may be expanded to other facilities where microscopic AIS are a concern and a source of water is readily available. Research has noted that visual inspection and hand removal are as effective as washing in the removal of visible aquatic invasive species.
Comment: I know of very few bilges that will drain dry. Some method of killing plant and animal species in residual bilge water is needed.
Response: The Department will continue to encourage the use of hot water in excess of 140° to kill plant and animal species in remnant bilge water. If hot water is not available, boaters will be encouraged to flush their bilge prior to launching.
Comment: Will there be any fee associated with this program?
Response: There are no fees associated with these regulations.
Comment: The 6 NYCRR Part 575 regulations should be cited in the 59.4 regulations to positively identify which invasive species are prohibited or regulated.
Response: Many AIS, particularly small plant fragments, are difficult or impossible to ID outside of a laboratory setting. DEC does not expect law enforcement staff to be able to separate AIS from non-AIS, therefore the regulation does not specifically apply to AIS, but rather to all aquatic plants and animals. Parts 59.4 and 190.24 are entirely separate from Part 575 and are promulgated under different legislative authorities and address 2 different “pathways” for invasive species introduction and spread.
Comment: These regulations are overly restrictive. They limit access to too many waterbodies and also limit time of access throughout the year impacting not only fisherman but also waterfowlers and riparian landowners. We recommend that the proposed Lake George regulations not become a model for the state as a whole.
Response: These regulations are substantially different from the Lake George program requiring mandatory inspection and decontamination via hot water pressure washing. The simple acts of draining and removing AIS clinging to a boat or trailer are not burdensome and should not adversely impact the average boater or angler. These regulations do not limit access to waterbodies for any category of users.
Comment: Given the new regulations, how do fishermen legally transport bait to the lake from the bait shop?
Response: Bait users will be required to carry their bait to and from the launch ramp in a bucket or other suitable container.
Comment: Boaters need the tools to remove zebra mussels. Hot water pressure washers need to be placed at state boat launches.
Response: Boaters mooring or docking boats in zebra mussel infested waters will have the capability to obtain a DEC permit allowing them to take the boat directly from a waterbody to a place of storage or other location where zebra mussels can be removed. Hot water pressure washers are a scalding risk and can only be used by trained staff and could not be provided 24 hours per day during the entire boating season at DEC facilities. In the select circumstances where they have been employed in other states, they are best positioned outside of the actual boat launch to avoid additional congestion and confusion at these locations. DEC is reviewing various options to provide boaters a 24 hr option for the removal of zebra mussels.
Comment: How will this regulation affect me if I launch before daylight or after hours?
Response: As long as your boat arrives drained and clean of any visible aquatic plants and animals, you may launch at any time of the day.
Comment: Boats are but one source of AIS. What is being done about other potential vectors?
Response: Although there are a number of potential vectors, boats have been identified as one of the most important and they are something that DEC can do something about at the launch sites it administers.
Comment: These regulations will cause a serious problem for tourists coming into New York from other states and Canada. How will they be informed about the new boating rules? How will they receive a permit?
Response: The simple act of removing visible plants and animals from a boat or trailer and draining a boat will not cause any additional burden on in-state or out of state boaters. DEC will make a concerted effort to advise boaters of these new regulations prior to their implementation. No permits are necessary for the average user to comply with these regulations.
Comment: It is doubtful that canoes and kayaks transported from one waterbody to the next will spread AIS. This is a terrible burden on simple users of the resources I pay for with my taxes.
Response: Any boat, whether it is motorized or not is a potential risk to spread AIS unless it is properly drained and cleaned. In the case of a kayak, the simple act of turning it over and draining any residual water is not overly burdensome and is typically done before loading the kayak on a vehicle.
Comment: If someone has a boat in a marina, or moored to their dock and attempts to remove it from the water at the ramp, yet doesn’t realize that there are invasive species on the boat, how will that person be able to clean the boat at the ramp so that it can be transported to its storage location?
Response: DEC understands that boaters docking or mooring their boat in zebra or quagga mussel infested waters will likely not be able to adequately clean their boat of these AIS prior to leaving the launch. Such users can obtain a permit that will allow them to transport their boat directly to a place where it can be adequately cleaned.
Comment: The proposed rule would not allow possession of a ham sandwich or other non-companion animal part intended a food under these rules. Is this correct?
Response: These regulations are intended to prevent the spread of AIS and DEC law enforcement personnel will use appropriate discretion to ensure that any enforcement actions are directed towards aquatic plant and animal species.
Comment: DEC’s efforts to control the spread of AIS should not be limited to these regulations.
Response: DEC’s efforts to prevent the spread of AIS will not end with the enactment of these regulations. Outreach and education are extremely important tools in the fight against AIS and DEC will continue to expand and improve the information it makes available to the public in print and via the DEC website. DEC is also in the process of developing an updated AIS Management Plan for New York State which will help guide future AIS spread prevention efforts.
Comment: This regulation does not account for the non-visible spectrum of life cycles.
Response: The primary mechanisms by which non-visible AIS may be spread is through water in the bilge, livewell and other water holding compartments The requirement that boats be drained before leaving a DEC launch site will address this concern. AIS may also be spread by attaching to plants and other visual debris. The requirement that all boats and trailers must be free of visible plant and animal material will address this possible spread mechanism.
Comment: The exemption for plants used as camouflage on boats could lead to inadvertent transport of AIS that may be attached to these plants.
Response: DEC considers this risk to be minimal. This exemption primarily applies to duck hunters who commonly use plant material for camouflage. These activities typically occur during cold water periods when the risk of AIS spread is reduced and the plants used are typically terrestrial (ie. cedar branches, corn stalks, etc.) minimizing the risk of AIS spread. Those using camouflage on their boats would still be held to the same standard of draining their boat and ensuring that any plants or other items used for camouflage are free of other plant and animal debris. DEC has included AIS spread prevention information on the waterfowl and migratory game bird hunting section of its website and will also include this information in the hunting regulations guide.
Comment: The concept of “visible to the human eye” is too vague for formal enforceable legislation.
Response: DEC law enforcement is comfortable with this terminology and will use the appropriate degree of discretion to ensure that a boater has taken reasonable steps to inspect their entire boat, trailer and associated equipment and gear.
Comment: The proposed regulation should be made more thorough by including mud from the list of things that need to be removed from boats, trailers, etc.
Response: Mud commonly accumulates on boats and trailers during the process of travelling to a boat launch down a muddy road. Mud of this nature is not of concern and discerning mud accumulated from the act of boating from that gathered along the road would be impossible.
Comment: DEC should require boats to be dried and disinfected prior to launching and prior to leaving a boat launch.
Response: It is unreasonable to expect a boat to be dried prior to leaving a boat launch. The complete drying of a boat may take weeks during damp, cool periods. Disinfection at a boat launch is also difficult due to the lack of a hot water source at boat launches and restrictions associated with the use of other potential disinfection materials. Boat disinfection is best completed away from the actual launch location. DEC provides disinfection advice at www.dec.ny.gov/animals/48221.html.
Comment: What if my boat cannot be drained?
Response: You will need to utilize another method such as a manual or electric pump to remove remnant water from your boat.
