Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
This emergency regulation is necessary for the preservation of public health, safety and general welfare because it will protect water quality and allow responsible public use of Hemlock and Canadice Lakes and the lands surrounding the lakes. The emergency regulation will take effect immediately upon acquisition of the land by the State. The regulation is critical to protecting the City of Rochester’s public water supply by continuing to regulate public use of the lakes and surrounding land consistent with the City’s longstanding regulations and by adopting such additional necessary protective measures to control public use immediately upon State acquisition.
This new section, 190.26 of 6 NYCCR will allow for an enforceable State regulation that will enable the State to be responsible for care, custody and control of the lakes and surrounding land as well as public recreation management. Restrictions on motorized use, camping, swimming and other activities will be in place to protect the water supply.
Subject:
Hemlock-Canadice State Forest.
Purpose:
To control public use to protect watershed values, natural resources and public safety.
Text of emergency rule:
A new section 190.26 is added to 6 NYCRR to read as follows:
190.26 Hemlock-Canadice State Forest (Livingston-Ontario State Reforestation Area #1)
In addition to other applicable general provisions of this Part, the following requirements apply to the Hemlock-Canadice State Forest. In the event of a conflict, these specific provisions shall control.
(a) Description. For the purposes of this section, Hemlock-Canadice State Forest refers to the Phelps and Gorham Purchase in Townships 7, 8 and 9, Ranges 5 and 6, located in the Finger Lakes Region, approximately 30 miles south of the city of Rochester. The property includes two large undeveloped parcels surrounding Hemlock and Canadice Lakes, totaling 6,684 acres in the towns of Canadice, Conesus, Livonia, Richmond and Springwater in Ontario and Livingston counties, being the same lands as more particularly described in deeds conveying such lands to the People of the State of New York, on file in the Department of Environmental Conservation, Albany, NY, and duly recorded in the offices of the county clerks of Ontario and Livingston counties. Said Hemlock-Canadice State Forest shall be hereinafter referred to in this section as "state forest".
(b) In or on the state forest, it is unlawful for any person to:
(1) possess or operate a boat, ice fish, traverse the ice or water, or fish from shore on:
i. Hemlock Lake: north of the northerly boat launch, and between Boat Launch Road and Hemlock Lake; and
ii. Canadice Lake: northernmost 500 feet of the lake, and Canadice Outlet Creek and adjacent property within one mile of intersection with Route 15A;
(2) possess or operate: a mechanically propelled vessel over 17 feet in length, a mechanically propelled vessel with a motor exceeding ten horsepower, or a non-mechanically propelled vessel over 17 feet in length;
(3) flush motors, bilges, bait buckets, livewells, or wash boats, except more than 100 feet from lakes and streams;
(4) swim, bathe, wade, water ski, tube or otherwise have water contact;
(5) set, light or use a campfire, charcoal fire or any other kind of fire;
(6) camp;
(7) possess or operate an all-terrain vehicle;
(8) possess or operate a snowmobile, except on designated trails when there is sufficient snow cover;
(9) discharge a firearm, except for legally taking game species;
(10) transport or introduce any aquatic plant or animal into the water;
(11) introduce, use or maintain any horses, work animals or other animals;
(12) possess a domesticated pet unless it is leashed or controlled at all times; however, no domesticated pet shall have any contact with the water;
(13) deposit any feces or animal entrails within 100 feet of any water body or water course;
(14) commit any act that may result in contamination of any portion of the lakes or streams.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire September 26, 2010.
Text of rule and any required statements and analyses may be obtained from:
David Forness, Chief, Bureau of State Land Management, NYS DEC, 625 Broadway, Albany, New York 12233-4255, (518) 402-9428, email: dmforness@gw.dec.state.ny.us
Additional matter required by statute:
A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.
Regulatory Impact Statement
1. Statutory authority:
The Department of Environmental Conservation (Department) has entered into an agreement to acquire 6,684 acres of watershed lands, including Hemlock and Canadice Lakes, Livingston-Ontario State Reforestation Area #1 (Hemlock-Canadice State Forest), pristine Finger Lakes located approximately 28 miles south of, and currently owned by, the City of Rochester (City). Hemlock and Canadice Lakes are the primary source of drinking water for the City and several other communities. City stewardship of the Hemlock and Canadice Lakes watershed has resulted in both a superior water supply and a unique environmental setting. Under the City's management, the public has been welcome to pursue licensed sporting activities such as fishing and hunting as well as boating, hiking and nature study. The Department's emergency regulations will provide a seamless transition in the management of this important property in order to continue to maintain exceptional water quality and foster the remote atmosphere of the area.
Under the Environmental Conservation Law (ECL), the State has the authority to use the Environmental Protection Fund to acquire lands that are included as priorities in the State's Open Space Conservation program. (See ECL Article 49, Title 2) State acquisition of the 6,684 acre Hemlock-Canadice State Forest is a listed priority in the State's current (2009) Open Space Plan (priority project # 113, Conesus, Hemlock, Canadice & Honeoye), and has been listed as a priority since the beginning of the formal State Open Space Conservation program in 1992.
ECL section 1-0101(1) provides that it is "…the policy of the State of New York to conserve, improve and protect its natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and general welfare of the people of the State and their overall economic and social well being. ECL section 1-0101(3)(b) provides that "It shall further be the policy of the State to foster, promote, create and maintain conditions under which man and nature can thrive in harmony with each other…", by "…guaranteeing 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) provides that "It shall be the responsibility of the Department… by and through the Commissioner to carry out the environmental policy of the State…" ECL section 3-0301(1)(b) gives the Commissioner the power to "promote and coordinate management of water, land...resources to assure their protection...and take into account the cumulative impact upon all such resources in...promulgating any rule or regulation..." ECL section 9-0105(1) gives the Department the "power, duty and authority" to "exercise care, custody and control" of State lands.
ECL section 3-0301(2)(m) authorizes the Department to "Adopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of…" the ECL, ECL section 3-0301(2)(v) empowers the Department to "…administer and manage the real property under the jurisdiction of the Department for the purpose of preserving, protecting and enhancing the natural resource value for which the property was acquired or to which it is dedicated, employing all appropriate management activities." ECL section 9-0105(3) authorizes the Department to "make necessary rules and regulations to secure proper enforcement of …" ECL Article 9.
2. Legislative objectives:
The Department has as one of its core missions, the acquisition of environmentally important lands and waters, funding for which has been provided by various acts of the State Legislature since the 19th century. The Department also has been provided authority by the 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 ECL 9-0105(3).
In adopting various articles of the ECL, the legislature has established forest, fish, and wildlife conservation to be 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 emergency regulations will protect natural resources and the safety and welfare of those who engage in recreational activities on the Hemlock-Canadice State Forest. Natural resources will be protected by continuing to: prohibit all personal and animal contact with the water; prohibit horses and other animals, other than domesticated pets while leased or controlled; prohibit camping, fires, all terrain vehicles; prohibit any boating or fishing on certain areas of the lakes near water supply facilities; and prohibit any act which would result in the contamination of the lakes or streams. These activities are either not covered or differently covered in the existing 6 NYCRR Part 190 regulations.
3. Needs and benefits:
On or about June 1, 2010, the Department will take title to the Hemlock-Canadice State Forest. The City will retain the right to use the lakes for its water supply. The Department will be responsible for the care, custody and control of the lakes and surrounding land as well as public recreation management. The Department's intent is to manage the Hemlock-Canadice State Forest in substantially the same manner as the City has for more than a century, as a passive recreational property with restrictions on motorized use, camping, swimming and other activities, until such time as the Department is able to develop permanent long term regulations for this specific area following the development of a Unit Management Plan (UMP). Because the lakes will continue as the City's water supply and the surrounding land will continue as the watershed for the City's water supply, the Department needs to promulgate proposed regulations to control public use under State enforceable regulations. The City's management of these unique Finger Lake properties has resulted in a magnificent public outdoor recreational opportunity and a well protected water supply. The proposed State's acquisition of the Hemlock-Canadice State Forest has enjoyed overwhelming public support and a desire to continue the management of the property for watershed protection and passive public recreation.
State lands are managed under regulations promulgated under 6 NYCCR, Part 190 et al. While many existing public uses of these watershed lands will follow existing State land regulations, several special regulations, unique to the needs of this property, are required to continue the management of the property as closely as possible to that of the City in order to protect the water supply and the watershed. The need exists to promulgate proposed regulations so that appropriate mechanisms are in place to ensure the protection of the water supply, the property and continued public recreational use.
4. Costs:
The costs of promulgating these regulations will be minimal, and will involve signage and public brochures.
5. Local government mandates:
The regulations will not impose any additional burdens on local governments within the area.
6. Paperwork:
The 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. The proposed regulations are designed to avoid duplication with existing State and Federal rules and regulations, and are proposed for activities where existing State land regulations are insufficient to meet the requirements to protect this specific area.
8. Alternatives:
Since the City's jurisdiction, and its existing regulatory scheme, would end upon the State's acquisition of the Hemlock-Canadice State Forest, the "no action" alternative would result in only the application of the Department's existing State land regulations, 6 NYCRR Part 190. While these existing regulations provide some protection for the Hemlock-Canadice State Forest, in the absence of specific area regulations, the resources of the area, particularly the water supply, would not be protected. While the Department could attempt to apply the proposed regulations solely through signage on the property, the experience of the Department's enforcement staff is that this is generally not effective and often successfully challenged in judicial proceedings when not supported by regulations.
9. Federal standards:
The regulations do not exceed any minimum standards of the Federal government.
10. Compliance schedule:
This emergency rulemaking will substitute State regulations for the City's regulations, which will no longer remain in effect upon sale of the property. The Department is concurrently submitting a proposed rulemaking package to put these regulations in place on a permanent basis. A UMP for the property will be completed, which will include a public comment period, a process that could take two or more years to complete. The proposed regulations will then be reviewed and may be revised as necessary to be consistent with the UMP and public comments received. The emergency regulations will be effective the date they are filed with the Department of State.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with these regulations because the proposal will not impose any reporting, record-keeping or other compliance requirements on small businesses or local governments.
Since there are no identified cost impacts for compliance with the proposed regulations on the part of small businesses and local governments, they would bear no economic impact as a result of this proposal. The proposed rule relates solely to protecting public safety and natural resources on the Hemlock-Canadice State Forest.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this proposal because the proposal will not impose any reporting, record-keeping or other compliance requirements on rural areas. The proposed regulation relates solely to protecting public safety and natural resources on the Hemlock-Canadice State Forest.
Job Impact Statement
A Job Impact Statement is not submitted with this proposal because the proposal will have no substantial adverse impact on existing or future jobs and employment opportunities. The proposed regulation relates solely to protecting public safety and natural resources on the Hemlock-Canadice State Forest.
