PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 190.10(g) to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 1-0101(3)(b), 3-0301(1)(b), (2)(m), 9-0105(1) and (3)
Subject:
Croton Gorge Unique Area.
Purpose:
To protect public safety and the natural resources on the Croton Gorge Unique Area.
Text of final rule:
A new subdivision (g) is added to 6 NYCRR section 190.10 to read as follows:
(g) Croton Gorge Unique Area. Description: For the purposes of this section, Croton Gorge Unique Area, referred to in this section as “the area”, means all those state lands located in Westchester County in the Town of Cortlandt, in a portion of the Cortlandt Patent.
(1) All camping shall be prohibited.
(2) Public use of the property will be allowed from sunrise to sunset only.
(3) The use of any type of fire shall be prohibited including the use of charcoal or gas grills.
(4) Possession or consumption of alcoholic beverages shall be prohibited.
(5) No person shall play a musical instrument or audio device, including, but not limited to radios, tape players, compact disc or digital players, unless the noise is rendered inaudible to the public by personal noise-damping devices such as headphones or earbuds.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 190.10(g)(5).
Text of rule and any required statements and analyses may be obtained from:
Jeff Wiegert, NYS DEC, 21 South Putt Corners Road, New Paltz, New York 12561, (845) 256-3084, email: jeffrey.wiegert@dec.ny.gov
Additional matter required by statute:
A Short EAF has been prepared in compliance with Article 8 of the Environmental Conservation Law.
Revised Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (“ECL”) section 1-0101(3)(b) directs the Department of Environmental Conservation (Department) to guarantee “that the widest range of beneficial uses of the environment is attained without risk to health or safety, unnecessary degradation or other undesirable or unintentional consequences.” ECL section 3-0301(1)(b) gives the Department the responsibility to “promote and coordinate management of...land resources to assure their protection, enhancement, provision, allocation, and balanced utilization...and take into account the cumulative impact upon all such resources in promulgating any rule or regulation.” ECL section 9-0105(1) authorizes the Department to "[e]xercise care, custody, and control" of state lands. ECL section 3-0301(2)(m) authorizes the Department to adopt rules and regulations “as may be necessary, convenient or desirable to effectuate the purposes of [the ECL],” and ECL 9-0105(3) authorizes the Department to “[m]ake necessary rules and regulations to secure proper enforcement of [ECL Article 9].”
2. Legislative objectives:
In adopting various articles of the ECL, the legislature has established that forest, fish, and wildlife conservation are policies of the state and has empowered the Department to exercise care, custody, and control over certain state lands and other real property. Consistent with these statutory interests, the proposed regulations will protect natural resources and the safety and welfare of those who engage in recreational activities within the Croton Gorge Unique Area. The Department has also been authorized by the state legislature to manage state owned lands (see ECL section 9-0105(1)), and to promulgate rules and regulations for the use of such lands (see ECL sections 3-0301(2)(m) and 9-0105(3)).
3. Needs and benefits:
The Croton Gorge Unique Area (“the Area”) is located in the town of Cortlandt in Westchester County and was acquired in 1978 by the state because of its natural beauty. As early as 1965, Westchester County identified this stretch of the Croton River for public acquisition in its open space program. In 1974, discussions involving the Department, Westchester County officials, the Nature Conservancy, and various local and regional conservationists culminated in the formal submission of a nomination of a portion of the Croton Gorge for acquisition by the Department with Environmental Quality Bond Act funds under the unique category for inclusion in the State Nature and Historical Preserve. In 1976, the Board of the State Nature and Historical Preserve Trust advised the commissioner of the Department of Environmental Conservation that “the Croton River and Gorge from the New Croton Dam to the River’s confluence with the Hudson qualifies as a “Unique Area” in the natural beauty category; that the Board recommend that the commissioner explore and report on means of protecting the entire Gorge either by State, County, private or municipal acquisition or other method of protection; and that as a first step the commissioner acquire by easement or fee title up to 40 acres in the section designated….” Original parcels identified for acquisition included lands owned by (a) the Village of Croton-on-Hudson, (b) the Union Free School District #2, (c) Towns of Cortlandt and Yorktown, and (d) three private landowners. An internal memo described the acquisition as “one of the grandest hemlock gorges in the State, and the finest immediately adjacent to the Tidal Hudson. Despite the propinquity to New York City, the tract is largely undisturbed.” The same memo proposed that an emergency action was required “in order to secure a crucial portion from adverse development.”
In 1978, the Department acquired 19.2 acres in three separate parcels east of the Croton River in the Town of Cortlandt, from two willing private sellers. The 19.2 acre acquisition by the Department became the Croton Gorge Unique Area. Part 190 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (“6 NYCRR”) contain the general regulations concerning the public’s use of state lands, but it does not adequately address the majority of management issues confronting this property including overuse, alcohol consumption, campfires, and camping.
Due to the large influx of public users to this small property in the summer months, there is degradation to the natural resources of the Area and an increase in public safety issues. These include the trampling of vegetation resulting in areas of compacted soil and bare ground, damage to trees resulting from limb removal for fire use, littering, and graffiti. In addition, trespassing onto neighboring private properties is an issue. In the case of wildfire, efforts to contain a blaze by local first responders would be hampered with the lack of fire hydrants near the property and the rugged terrain. Another problem are loud noises that reverberate throughout the gorge from audio devices used on the Area.
The proposed regulations will improve public safety by prohibiting the consumption of alcohol and the use of fire on the property. By prohibiting camping and restricting hours of use, it is anticipated that litter, trespass and other degradation problems will be reduced or eliminated. In contrast to other similar regulations, the proposed regulations specify the start and end of hours of public use as sunrise and sunset, rather than times of day. This language will help to ensure that users leave the area while there is still sufficient daylight to safely navigate the steep trail that is the only means of ingress and egress from the property.
Local government is very supportive of this regulatory proposal and are expected to assist the Department with enforcement. Local law enforcement and public safety officials are the first responders to incidents on this property. A Task Force composed of local municipal leaders, neighbors, law enforcement and public safety officials has been formed to address management issues on the Croton Gorge Unique Area. The Task Force has requested that the Department promulgate regulations to increase public safety and address overuse while still providing a quality outdoor recreational experience for users of the property. It has been pointed out that Department lands are the only publicly managed lands along the Croton River that allow alcohol consumption, campfires and camping. Consistency in permitted uses on publicly managed lands along the Croton River is desired. The uniqueness of the area and its uses require some additional restrictions on Department lands. For these and other reasons the Department seeks to promulgate regulations for the Croton Gorge Unique Area. The Department has concluded that it is reasonable and appropriate to develop regulations to regulate the activities at the Croton Gorge Unique Area in order to protect the Area’s natural resources given its unique character and level of public use.
Department staff attended a Task Force meeting on October 2, 2014 to listen to concerns and issues with public use of the Croton Gorge Unique Area. This is a continuation of meetings the Department has attended since 2006. Attendees at this meeting included Town Supervisors from Cortlandt and Ossining, the Mayor of Croton-on-Hudson, the Director of Environmental Services for the Town of Cortlandt, police and emergency personnel from Westchester County and the above municipalities, interested members of the public, users of the property and neighbors. At that meeting Department staff agreed to a field visit to the property which occurred on November 8, 2014. A handful of people showed up including the Director of Environmental Services for the Town of Cortlandt and a couple of neighbors. The content of the proposed Unique Area regulations was discussed.
Information regarding the Department’s intent to propose a regulation, the content of the regulation and the public process associated with the rulemaking will appear in a widely- distributed Spanish-language newspaper in the area. In addition, a public meeting in the local community will be held during the formal regulatory comment period. All regulatory documents will appear on the Department’s website.
4. Costs:
There will be no increased staffing, construction or compliance costs projected for state or local governments or to private regulated parties as a result of this rulemaking. Costs to local governments and Department enforcement personnel will not increase as a result of increased patrols since patrol levels will remain the same. Costs to the Department will be minimal and are estimated to be approximately $500.00 for necessary signage for the property explaining the new regulations.
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.
6. Paperwork:
The proposed regulations will not impose any reporting requirements or other paperwork on any private or public entity.
7. Duplication:
There is no duplication, conflict, or overlap with state or federal regulations.
8. Alternative approaches:
The no-action alternative is not feasible since it does not adequately protect the Croton Gorge Unique Area from overuse and abuse. Reliance on current Part 190 regulations for State Forest lands does not provide adequate public safety or law enforcement protections that are necessary for the protection of the Croton Gorge Unique Area because of its unique characteristics and geographic location.
9. Federal standards:
There is no relevant federal standard governing the use of state lands.
10. Compliance schedule:
The regulations will become effective on the date of publication of the rulemaking in the New York State Register. Once the regulations are adopted they are effective immediately. The Department will educate the public about the regulations through information posted on the Departments’ web site, signage posted on the property, and by working with the Task Force to help disseminate information regarding the regulations.
Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement
A non-substantive change was made to the regulation that did not necessitate revision to the previously published statement for the Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Croton Gorge Unique Area Regulations Change
Comment: Happy and supportive of the regulations. Feels that the regulations will help deter abuse and overuse of the property. (6 Comments)
Response: Thank you.
Comment: An additional regulation should be added to address the noise issues on the property, especially loud music from boom boxes. The noise echoes in the gorge and is quite disruptive to the surrounding property owners on both sides of the river. Several other meeting attendees also nodded their heads in agreement on the additional noise regulation.
At a meeting with police officers before the public meeting, the issue was also brought up by local law enforcement, who agreed that an additional regulation intended to limit noise would help.
Response: An additional regulation will be added in an attempt to limit noise.
Comment: Who is responsible for enforcing the new regulations? Can the Village of Croton-on-Hudson police be empowered to write tickets per the new regulations?
Response: The Croton Gorge Unique Area is a DEC property managed under Environmental Conservation Law (ECL), so DEC has the main jurisdiction. However, any police officer has the ability to write tickets against ECL and DEC is working with the New York State Police and the Westchester County Sherriff’s Office to enforce the new regulations. The Village of Croton-on-Hudson Police have stated that the property is outside of their jurisdictional area.
Comment: Is there anything that would prevent DEC from putting up the Special Regulations prior to formal adoption?
Response: Such action at this time would be a departure from the public process that has been started. Signs with the new regulations will be put up after the new regulations are final.
Comment: Commenter would like to see the parking area lot reopened.
Response: The parking area is not on DEC property. Supervisor Puglisi (Town of Cortlandt), who was in attendance, stated that half the parking lot is open now.
Comment: Any discussion regarding limiting the number of people who use the property on a given day?
Response: Limiting the number of people on the property is not being discussed at present. The new regulations are intended to help reduce natural resource damage by addressing the types of uses, not the number of users. If this approach is unsuccessful, limiting the number of users could be considered.
Numerous comments on the new regulations are consolidated and summarized below.
Comments: Need to stress the importance of clear and plentiful signage. Realize it will be an educational process to get the word out about the regulations to those who use the property. Village of Croton police have a mega phone to use while out on the water. Provide ECO’s with brochures detailing the proposed regulations to give out during their patrols of the property. It may be a good idea to reach out to members of St. Anne’s church in Ossining. Many of the population that use this property may attend this particular church and they have a website. Special Regulations should be posted on DEC’s website. Hoping Special Regulations will allow users to have a quality experience when they visit the property.
Response: The Department is interested in getting the word out about the new regulations also. Signage with the new regulations will be posted on the property, in English and Spanish. The regulations will also be posted on the Department’s website.
