Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The immediate adoption of a new section 190.35 to title 6 of NYCRR, Peekamoose Valley Riparian Corridor, as an emergency rulemaking is necessary for the preservation of the public health, safety and general welfare.
The Peekamoose Valley encompasses more than over 2,000 acres of Forest Preserve land straddling the upper Rondout Creek along Peekamoose Road (Ulster County 42) in the Town of Denning in Ulster County. It is a remote area in the heart of the Catskill Park and New York City’s Catskill/Delaware watershed. The upper Rondout Creek flows into the Rondout Reservoir, an important drinking water supply for New York City.
Until recently, most of the public use in the area was concentrated in the Peekamoose primitive camping area. However, day use of the area referred to as the “Blue Hole,” a large, deep and very cold swimming hole in the Rondout Creek immediately upstream of the Valley’s primitive camping area, has recently increased exponentially, due in part to coverage in social media, several websites, and national magazines which tout the Blue Hole as “one of the best swimming holes in the nation.” Due to this dramatic increase in public use, the natural resources of the area are rapidly becoming degraded, fragile ecosystems are being degraded, and serious public health and safety issues are being created. The area is being fouled by human waste, raising concerns about water quality in the Rondout Creek and the New York City reservoir into which it flows. The trampling of vegetation has exposed and compacted the soil. Trees are being stripped of their limbs for firewood, and indiscriminately located campfires are creating numerous carbon scars on the ground. Garbage, trash, and broken glass are despoiling the wild character of the area and raising public safety concerns. The use of portable generators and boom boxes has interfered with the Valley’s quiet and solitude. Moreover, the Town of Denning indicates that Peekamoose Road is often not passable by emergency service vehicles because of illegally parked cars, and visitors sometimes stand in the road, putting themselves and passing motorists at risk.
The emergency regulations are tailored to address these problems by creating and delineating a new Peekamose Valley Riparian Corridor (“the Corridor”) that will prohibit certain activities within it. Because of the immediate threat to the public health, safety and general welfare posed by the surge in the number of people recreating in the Peekamoose Valley Corridor, it is essential to continue this regulation on an emergency basis, because of heavy use during the summer months. It is essential to immediately take steps to maintain the natural character of the area so that it will be available for sustained public use and enjoyment. Given the significant threats to public health, safety and the environment and the inability of the normal rulemaking process to result in the promulgation of regulations in time for this summer’s busy season, it is appropriate to continue this regulation now on an emergency basis.
The use of the emergency rulemaking process is authorized by the State Administrative Procedure Act (SAPA) section 202(6), providing that a State agency may dispense with all or part of the normal rulemaking requirements and adopt a rule on an emergency basis if “ the agency finds that the immediate adoption of a rule is necessary for the preservation of the public health, safety or general welfare and that compliance with the normal rulemaking requirements … would be contrary to the public interest …” Because of the immediate threat to the Peekamoose Valley Riparian Corridor as a result of overuse, it is essential to immediately continue this regulation on an emergency basis for the remainder of the 2016 season.
Subject:
Peekamoose Valley Riparian Corridor.
Purpose:
Protect public health, safety and general welfare, as well as the natural resources on the Peekamoose Valley Riparian Corridor.
Text of emergency rule:
Section 190.35 is renumbered 190.36 and a new section 190.35 Peekamoose Valley Riparian Corridor is added to read as follows:
In addition to other applicable general provisions of this Part, the following requirements apply to the Peekamoose Valley Riparian Corridor. In the event of a conflict between this section and another section of this Part, the more restrictive provision will control.
(a) Description. For the purposes of this section, Peekamoose Valley Riparian Corridor means all those state forest preserve lands lying and situated in the Town of Denning in Ulster County located within 300 feet on either side of the centerline of the Roundout Creek, beginning at the New York State land boundary where it crosses Ulster County Route 42 southwest of the Lower Field Parking Area, thence heading northeast for approximately 3.75 miles, and ending with the New York State land boundary approximately one mile east of the Buttermilk Falls parking area, encompassing lands designated by the department as the Sundown Wild Forest and Slide Mountain Wilderness Area of the Catskill Park.
(b) No person shall kindle, build, maintain or use a fire within the Peekamoose Valley Riparian Corridor, including, but not limited to, charcoal fires, wood fires, gas grills, propane stoves or other portable stoves, except at designated campsites.
(c) No person shall possess a glass container within the Peekamoose Valley Riparian Corridor, except when necessary for the storage of prescribed medicines.
(d) No person shall possess a portable generator within the Peekamoose Valley Riparian Corridor, except at designated campsites.
(e) No person shall play a musical instrument or audio device, including, but not limited to, radios, tape players, compact disc or digital players, except at designated campsites unless the noise is rendered inaudible to the public by personal noise-damping devices such as headphones or earbuds. At designated camp sites no person shall use any audio device which is audible outside the immediate area of the campsite.
(f) No person shall deposit or cause to be deposited any solid waste, garbage, food waste, human wastes or other sanitary waste products within the bounds of the Peekamoose Valley Riparian Corridor except at facilities provided and designated by the department.
(g) No person shall park any motor vehicle within the Peekamoose Valley Riparian Corridor except at areas designated and marked by the department as parking areas.
(h) No person shall enter the Peekamoose Valley Riparian Corridor area between one-half hour after sunset and one-half hour before sunrise except for: (1) persons camping at designated campsites; (2) licensed hunters and trappers for the purpose of hunting or trapping; (3) pedestrians using the marked hiking trails crossing the corridor; or (4) persons otherwise authorized by permit issued by the department.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ENV-23-16-00001-EP, Issue of June 8, 2016. The emergency rule will expire October 14, 2016.
Text of rule and any required statements and analyses may be obtained from:
William Rudge, Natural Resources Supervisor, NYS DEC, 21 South Putt Corners Road, New Paltz, NY 12561-1696, (845) 256-3092, email: bill.rudge@dec.ny.gov
Additional matter required by statute:
An EAF/Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.
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 3-0301(1)(d) authorizes the Department to “provide for the care, custody and control of the Forest Preserve.” ECL section 9-0105(1) authorizes the Department to "[e]xercise care, custody, and control of the several preserves, parks and other State lands described in [Article 9 of the ECL],” which includes Forest Preserve lands. Article XIV, Section 1 of the New York State Constitution provides that the lands of the Forest Preserve “shall be forever kept as wild forest 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:
Paragraph 1 of section 3 of Article XIV of the New York State Constitution provides that “forest and wild life conservation are. . . policies of the State.” Article XIV, section 1 of the New York State Constitution provides that the lands of the Forest Preserve “shall be forever kept as wild forest lands,” and ECL sections 3-0301(1)(b) and 9-0105(1) give the Department jurisdiction to manage Forest Preserve lands. The Department is also authorized to promulgate rules and regulations for the use of such lands (see ECL sections 3-0301(2) (m) and 9-0105(3)). Consistent with this authority, the proposed regulations are crafted to protect natural resources and the health, safety and general welfare of those who engage in recreational activities within the Peekamoose Valley Riparian Corridor of the Forest Preserve in the Catskill Park.
3. Needs and benefits:
The Peekamoose Valley is an area encompassing more than 2,000 acres of Forest Preserve lands straddling the upper Rondout Creek along Peekamoose Road (Ulster County 42) in the Town of Denning in Ulster County. The Valley is a remote area in the heart of the Catskill Park and New York City’s Catskill/Delaware watershed. The upper Rondout Creek flows into the Rondout Reservoir, an important drinking water supply for New York City. Due to the high quality of the Catskill/Delaware water supply, New York City is one of only five large cities in the country with a surface drinking water supply of such high quality that filtration is not required as a form of treatment.
This Peekamoose Valley has been a popular public destination since the State began acquiring land in the Valley in the 1960’s. As early as 1971 the area had been discovered by more distant visitors, including those from urban areas to the south. Camping grew increasingly popular in this remote valley (several thousand people over the course of a typical summer), resulting in garbage and other unacceptable impacts. To address these impacts, the Department instituted a camping permit system and limited camping to designated primitive campsites.
Although in the past, public use of the valley has often been loud, occasionally unlawful, and near or above capacity, until recently most of the public use was concentrated in the Peekamoose primitive camping area. However, during the summer of 2015, day use of the area referred to as the “Blue Hole,” a large, deep and very cold swimming hole in the Rondout Creek immediately upstream of the primitive camping area, increased exponentially compared to previous years. This was due in part to coverage in social media, several websites, and national magazines touting the Blue Hole as “one of the best swimming holes in the nation.”
Due to this dramatic increase in public use, the natural resources of the area are rapidly becoming despoiled, fragile ecosystems are being degraded, and serious public health and safety issues are being created. The area is being fouled by human waste, raising concerns about water quality in the Rondout Creek and the New York City reservoir into which it flows. The trampling of vegetation has exposed and compacted the soil. Trees are being stripped of their limbs for firewood, and indiscriminately located campfires are creating numerous carbon scars on the ground. Garbage, trash, and broken glass are despoiling the wild character of the area and raising public safety concerns. The use of portable generators and boom boxes has interfered with the Valley’s quiet and solitude. Moreover, the Town of Denning indicates that Peekamoose Road is often not passable by emergency service vehicles because of illegally parked cars, and visitors sometimes stand in the road, putting themselves and passing motorists at risk.
In 2015, the Department attempted to address the problems associated with overuse by implementing a number of strategies, including: clearly defining parking lots and limiting parking to those lots; prohibiting parking along the road (as posted by the Town of Denning); performing weekly garbage pick-ups; assigning two seasonal back country stewards to work weekends in the Peekamoose Valley from June through Labor Day; updating our twitter and Facebook pages to notify the public of the issues one may encounter in the Peekamoose/Blue Hole region which included limited parking and crowding; providing a map of the area showing the authorized parking areas; recommending alternative swimming/picnicking areas, including Department campgrounds, which are more suitable and with appropriate facilities; suggesting to media outlets who had posts touting the area that they modify their sites to inform the public of the parking and overuse issues; and maintaining a daily presence of up to three Forest Rangers and Environmental Conservation Officers working in conjunction with the Ulster County Sheriff’s office and New York State Police in a joint law enforcement effort to curb illegal use of the area.
In spite of the Department’s attempts in 2015 to address the area’s problems, public use continued to exceed the area’s carrying capacity, continuing to create unsanitary conditions, threats to water quality, trampled vegetation and a dramatic degradation of the wild character of the area.
Local municipal leaders, the Department, New York City Department of Environmental Protection (DEP) staff, law enforcement and public safety officials met on September 3, 2015 to address management issues at the Blue Hole. Several additional strategies were agreed upon for the 2016 season. Those at the meeting agreed to increase public outreach and education efforts by erecting new kiosks with information that would present themes related to water quality and drinking water protection (such as “This is Your Drinking Water”) as well as emphasizing responsibility for careful treatment of the resource (“leave no trace/carry it in, carry it out” ethics). NYCDEP agreed to seek at least one seasonal bilingual intern to help educate the public about the natural resources at this site. Other agreed upon strategies include: continuing current public outreach efforts using social media, web sites and print media and maintaining a law enforcement presence in partnership with Environmental Conservation Officers, Forest Rangers and County and State Police.
Those at the meeting also agreed that the Department should develop special regulations for the Valley because existing regulations, at 6 NYCRR Part 190, apply generically to all lands under the Department’s jurisdiction and do not adequately address the problems that are unique to the Valley and do not enable the Valley’s natural resources to be protected. Therefore, the Department proposes to promulgate regulations for the Peekamoose Valley Riparian Corridor.
The proposed regulations define the Peekamoose Valley Corridor as a 600 foot wide corridor on New York State Forest Preserve lands located within 300 feet on either side of the centerline of the Rondout Creek, beginning at the New York State land boundary where it crosses Ulster County Route 42 southwest of the Lower Field Parking Area, thence heading northeast for approximately 3.75 miles, and ending with the New York State land boundary approximately one mile east of the Buttermilk Falls parking area.
The proposed regulations prohibit the deposition of human waste within the Corridor except at designated facilities provided by the Department, thereby protecting the water quality of the Roundout Creek and the Roundout Reservoir, a critical part of New York City’s water supply.
To address the problem of broken glass, the regulations will prohibit the use of glass containers in the Corridor except when necessary to store prescription medications. The regulations will prohibit the use of portable generators and audio devices in the Corridor, helping to restore quiet and solitude for the public. The regulations will also restrict the hours of public use in the area to one half hour before sunrise to one half hour after sunset, thereby reducing or eliminating partying at the site by prohibiting the public from being in the area at night, when the greatest amount of abusive partying occurs. The regulations will also protect the public health and safety by requiring the public to leave the area at times when sufficient daylight allows for safe passage over uneven and steep terrain.
Local law enforcement and public safety officials are the first responders to incidents on this property. Local governments support the regulatory proposal and local law enforcement personnel will assist the Department with enforcement.
Information regarding the Department’s intent to propose a regulation, content of the regulation and the public process associated with the rulemaking will appear in a widely- distributed 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:
No costs to the regulated community are anticipated to result from the adoption of the proposed regulations. Costs to the State for the additional management actions are minimal and are estimated as follows: $4,000 for a kiosk and new signage; $1,000 for boulders to prohibit parking/define parking areas; $2,500/year for port-a-john rental/service; and $2,000/year for bear-proof refuse container rental/service.
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. Alternatives:
The no-action alternative is not feasible since it does not adequately protect the Peekamoose Valley Riparian Corridor from overuse and abuse and does not protect the public health, safety and general welfare. The existing generic 6 NYCRR Part 190 regulations for State lands are inadequate in protecting the Peekamoose Valley Riparian Corridor because of its unique characteristics, remote location and high level of public use.
Closing the area to public use is also not an acceptable alternative. Forest Preserve land is acquired for the use of and enjoyment by the public. ECL section 9-0301(1) provides that “all lands in the Catskill Park. . . shall be forever reserved and maintained for the free use of all the people. . .” The closure of Forest Preserve land to public use should not occur except when absolutely necessary to protect public health or the resource.
9. Federal standards:
There is no relevant federal standard governing the use of State lands.
10. Compliance schedule:
Once the regulations are adopted, they are effective immediately, and all persons will be expected to comply with them upon their effective date. 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 user groups and other stakeholders to help disseminate information regarding the regulations.
Regulatory Flexibility Analysis
Adoption of a new section 190.35 to 6 NYCRR will address overuse and increase public safety on the Peekamoose Valley Riparian Corridor while still providing a quality outdoor experience for users. 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 will bear no economic impact as a result of this proposal. The proposed regulations relate solely to protecting public safety and natural resources on the Peekamoose Valley Riparian Corridor.
Rural Area Flexibility Analysis
Adoption of a new subdivision 190.35 to 6 NYCRR will address overuse and increase public safety on the Peekamoose Valley Riparian Corridor while still providing a quality outdoor experience for users. 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 regulations relate solely to protecting public safety and natural resources on the Peekamoose Valley Riparian Corridor.
Job Impact Statement
A Job Impact Statement is not submitted with this proposal because the proposal will have no substantial adverse impacts on existing or future jobs and employment opportunities. The proposed regulations relate solely to protecting natural resources and public safety on the Lower Salmon River State Forest. The proposed regulations should enhance the public’s enjoyment of these lands, and local businesses may benefit from the attraction of potential customers to the area.
Assessment of Public Comment
The 45 day public comment period from June 8 thru July 23, 2016 resulted in eight written comments. In addition the Department hosted a public meeting on June 21, 2016 in the local community to explain the regulations and receive public comments. Approximately 20 people attended the meeting and several made verbal comments.
Comment: Strongly support the proposed regulations. Feels that the regulations will help deter abuse and overuse of the property. (eight written comments, several verbal comments)
Response: Thank you.
Comment: Post “Park head-on” signs to encourage people to park in the most efficient way, given the limited parking available.
Response: The Department will look into ways to delineate parking spaces in gravel lots to improve parking.
Comment: Limit the number of people who use the property on a given day. Require permits for camping and day use.
Response: The new regulations are intended to help reduce natural resource damage by addressing the types of uses, not the number of users, which is limited by available parking. If this approach is unsuccessful, limiting the number of users could be considered.
Comment: Need more officers to enforce the regulations.
Response: The Department is working with other agencies including the State Police, New York City Department of Environmental Protection, and Ulster County to assist with law enforcement in the valley.
Comment: Hiking trailhead parking is not useable due to Blue Hole visitors filling it up.
Response: The trailhead parking lot is available to people accessing the forest preserve for a variety of public uses, including hiking, hunting, backpacking, fishing and picnicking.
Comment: What are the results of water samples taken downstream of the Blue Hole?
Response: Water quality samples have not shown adverse impacts to water quality.
Comment: Can New York City Department of Environmental Protection close the road to protect the drinking water supply?
Response: No.
Comment: No cell service delays emergency response.
Response: The Department does not provide cell service, but we recognize this problem and are working to improve radio reception for emergency response.
Comment: Prohibit diving or swinging from a rope in the Blue Hole.
Response: The Department prohibits rope swings and removes them when found.
Comment: Any progress on a radio repeater?
Response: Yes, we are working to develop a repeater on private land that will improve radio reception for law enforcement and emergency response organizations.
Comment: Prohibit shooting.
Response: Hunting with a firearm is allowed on state forest preserve lands consistent with all laws and rules and regulations.
Comment: Get people off the road.
Response: The Department is considering the construction of a pedestrian trail from the trailhead parking lot to the Blue Hole Kiosk to reduce pedestrian use of the road. This proposal will be included in the Sundown Wild Forest Unit Management Plan revision.
Comment: Bear-proof dumpsters and outhouses are needed.
Response: The Department has made arrangements for a bear-proof dumpster and a port-a-john at the Blue Hole from Memorial Day through Columbus Day weekends.
