ENV-22-12-00008-A Sanitary Condition of Shellfish Lands
8/8/12 N.Y. St. Reg. ENV-22-12-00008-A
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 32
August 08, 2012
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-22-12-00008-A
Filing No. 739
Filing Date. Jul. 23, 2012
Effective Date. Aug. 08, 2012
Sanitary Condition of Shellfish Lands
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 41 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0303, 13-0307 and 13-0319
Subject:
Sanitary Condition of Shellfish Lands.
Purpose:
To reclassify underwater lands to prohibit the harvest of shellfish.
Text of final rule:
6 NYCRR Part 41 Sanitary Condition of Shellfish Lands is amended to read as follows:
Section 41.0 through subparagraph 41.2(b)(2)(iii) remain unchanged.
Existing subparagraph 41.2(b)(2)(iv) is repealed.
New subparagraph 41.2 (b)(2)(iv) is adopted to read as follows:
('iv') Tobay Marina-Boat Basin (local name).
('a') All that area of Tobay Heading (local name) and its tributaries in the western boat basin of the Town of Oyster Bay Tobay Marina.
('b') During the period May 15 through September 30, both dates inclusive, all that area of the eastern boat basin at the Town of Oyster Bay Tobay Marina (local name) and its tributaries.
Existing subparagraph 41.2(b)(2)(v) through clause 41.2(b)(3)(i)('a') remain unchanged.
Existing clause 41.2(b)(3)(i)('b') is repealed.
New clause 41.2(b)(3)(i)('b') is adopted to read as follows:
('b') All tributaries of Long Island Sound between Matinecock Point and Middle Chimney west of Oak Neck Point (local names, local landmarks).
Existing subparagraphs 41.2(b)(3)(ii) through 41.2(b)(3)(iii) remain unchanged.
New subparagraph 41.2(b)(3)(iv) is adopted to read as follows:
(iv) Frost Creek. All that area of Frost Creek and all that area of Long Island Sound within 400 yards in all directions of the northernmost end of the jetty located on the eastern side of the entrance to Frost Creek.
Existing paragraph 41.2(b)(4) through clause 41.2(b)(4)(i)('a') remain unchanged.
Existing clause 41.2(b)(4)(i)('b') is repealed.
New clause 41.2(b)(4)(i)('b') is adopted to read as follows:
('b') All tributaries of Long Island Sound between Matinecock Point and Middle Chimney west of Oak Neck Point (local names, local landmarks).
Existing subparagraphs 41.2(b)(4)(ii) through 41.2(b)(4)(iii) remain unchanged.
Subparagraphs 41.2(b)(4)(iv) through 41.2(b)(4)(vi) are renumbered 41.2(b)(4)(v) through 41.2(b)(4)(vii).
New subparagraph 41.2(b)(4)(iv) is adopted to read as follows:
(iv) Frost Creek. All that area of Frost Creek and all that area of Long Island Sound within 400 yards in all directions of the northernmost end of the jetty located on the eastern side of the entrance to Frost Creek.
Renumbered subparagraphs 41.2(b)(4)(v) and 41.2(b)(4)(vi) remain unchanged.
Renumbered subparagraph 41.2(b)(4)(vii) is repealed.
New subparagraph 41.2(b)(4)(vii) is adopted to read as follows:
(vii) Cold Spring Harbor
('a') All that area including tributaries south and east of a line extending southerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the western extremity of the white house located on the shoreline immediately west of Cold Spring Beach (local landmark).
('b') During the period May 1 through October 31, both dates inclusive, all that area of Eel Creek (local name) located at the Sagamore Hill National Historic Site and all that area within 250 yards in any direction of the southeastern corner of the bulkheading surrounding the stand of trees on the northern side of the entrance to the boat basin located immediately south of the Sagamore Hill National Historic Site.
Existing section 41.3 through clause 41.3(b)(3)(iii)('b') remain unchanged.
Existing clause 41.3(b)(3)(iii)('c') is repealed.
New clause 41.3 (b)(3)(iii)('c') is adopted to read as follows:
('c') During the period May 15 through December 31, both dates inclusive, all that area of Bellport Bay, lying north and east of a line extending southeast from the flagstaff serving the Bellport Yacht Club, located at the foot of Bellport Lane in Bellport, to the westernmost point of John Boyle Island and continuing southerly to the northernmost point of land east of the dock at Old Inlet and west of Hospital Island.
Existing clause 41.3(b)(3)(iii)('d') through clause 41.3(b)(3)(iii)('f') remain unchanged.
Existing clause 41.3(b)(3)(iii)('g') is repealed.
Subparagraph 41.3(b)(3)(iv) through clause 41.3(b)(4)(x)('a') remain unchanged.
Existing subclause 41.3(b)(4)(x)('a')('1') is amended to read as follows:
('1') All that area of Alwewife Creek (local name) and North Sea Harbor lying south and west of a line extending southeasterly from the northeasternmost point of land at Conscience Point, to the easternmost end of the bulkhead located at 319 Noyack Road, a two-story, wood shingled residence with three flag poles and a gambrel roof on an unnamed point of land, west of the entrance to Fish Cove (local names, local landmarks) and, all that area of North Sea Harbor lying east of a line extending northerly from the easternmost end of the bulkhead located at 319 Noyack Road to the southernmost point of land located at the residence of 102 Towd Point Road, on the opposite shoreline. The residence is 2-story and light in color, with a stand of trees between the shoreline and the residence.
Existing subclauses 41.3(b)(4)(x)('a')('2') and 41.3(b)(4)(x)('a') ('3') remain unchanged.
New subclause 41.3(b)(4)(x)('a')('4') is adopted to read as follows:
('4') All that area of Davis Creek (local name) lying east of a line extending southeasterly, from the westernmost footbridge that provides foot access to Little Peconic Bay (located in the vicinity of the residence at 40D Cedar Crest Road), and all that area lying west of line extending southerly from a monument located on the northern shore of Davis Creek, immediately west of Turtle Cove (local name), to a monument located on the southern shore of Davis Creek.
Existing subclause 41.3(b)(4)(x)('b')('1') is repealed.
New subclause 41.3(b)(4)(x)('b')('1') is adopted to read as follows:
('1') All that area of Davis Creek (local name) lying west of a line extending southeasterly, at the westernmost footbridge that provides foot access to Little Peconic Bay (located in the vicinity of the residence at 40D Cedar Crest Road) and continuing towards the Towd Point Road Bridge, including the entrance of said creek.
Existing subparagraphs 41.3(b)(4)(xi) through 41.3(b)(5)(vii) remain unchanged.
Existing subparagraph 41.3(b)(5)(viii) is amended to read as follows:
(viii) Northwest Harbor.
('a') All that area of Alewife Pond, including entrance channel and all that area of Northwest Harbor, within 50 yards in all directions from the inlet of Alewife Pond.
New clause 41.3(b)(5)(viii)('b') is adopted to read as follows:
('b') During the period May 1 through December 14, both dates inclusive, all that area of Northwest Harbor within a 200 yard radius from the western point of the spit of land on the southerly side of the entrance to the old Mile Hill Marina (local name), including the old Mile Hill Marina and the unnamed creek located immediately south of the old marina, which are all located southerly of Mile Hill Road.
Existing subparagraph 41.3(b)(5)(ix) through clause 41.3(b)(7)(ii)('b') remain unchanged.
Existing clause 41.3(b)(7)(iii)('a') is repealed.
New clause 41.3(b)(7)(iii)('a') is adopted to read as follows:
('a') Schoolhouse Creek: All that area of Schoolhouse Creek including all that area of Cutchogue Harbor within 100 yards in all directions of the easternmost point of the bulkheading on the south side of the entrance to Schoolhouse Creek.
Existing clause 41.3(b)(7)(iii)('b') through Section 41.3(b)(9) remains unchanged.
Existing subparagraph 41.3(b)(9)(i) is amended to read:
('i') Port Jefferson Harbor, Setauket Harbor and Conscience Bay.
Existing clauses 41.3(b)(9)(i)(a) and 41.3(b)(9)(i)(b) remain unchanged.
Existing clause 41.3(b)(9)( i)('c') is repealed.
New clause 41.3(b)(9)(i)('c') is adopted to read as follows:
('c') During the period May 1 through October 31, both dates inclusive all that area of Port Jefferson Harbor and Setauket Harbor, including tributaries, lying southerly and westerly of a line extending easterly from the northernmost chimney of the residence at 10 Preston Lane, Strong's Neck, (said residence is a two story house protected by a seawall) to channel Marker buoy G "5" FI G 4s BELL and thence continuing southeasterly to the flagpole located at the foot of Washington Street (Village of Poquott).
New clause 41.3(b)(9)(i)('e') is adopted to read as follows:
('e') During the period January 1 through December 31, both dates inclusive: all that area of Setauket Harbor, including Little Bay and all other tributaries, lying south and west of a line extending westerly from utility pole "NYT #29," located near the shoreline adjacent to Van Brunt Manor Road at Poquott, to the highest point of the turret of the residence at 18 John's Road at Strong's Neck, on the opposite shoreline.
Existing subparagraph 41.3(b)(9)(ii) is repealed in its entirety.
Existing subparagraphs 41.3(b)(9)(iii) through 41.3(b)(9)(viii) are renumbered 41.3(b)(9)(ii) through 41.3(b)(9)(vii).
Existing paragraph 41.3(b)(10) through 41.3(b)(11)(iii) remain unchanged.
Existing subparagraph 41.3(b)(11)(iv) is repealed.
New subparagraph 41.3(b)(11)(iv) is adopted to read as follows:
(iv) Cold Spring Harbor.
('a') All that area including tributaries south and east of a line extending southerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the western extremity of the white house located on the shoreline immediately west of Cold Spring Beach (local landmark).
('b') During the period May 1 through October 31, both dates inclusive, all that area of Eel Creek (local name) located at the Sagamore Hill National Historic Site and all that area within 250 yards in any direction of the southeastern corner of the bulkheading surrounding the stand of trees on the northern side of the entrance to the boat basin located immediately south of the Sagamore Hill National Historic Site.
Existing clause 41.3(b)(11)(v) through Section 41.5 remain unchanged.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 41.3(b)(5).
Text of rule and any required statements and analyses may be obtained from:
Gina M. Fanelli, NYS Department of Environmental Conservation, 205 N. Belle Meade Rd., East Setauket, NY 11733, (631) 444-0482, email: gmfanell@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.
Revised Regulatory Impact Statement
The original Regulatory Impact Statement, published in the New York State Register on May 30, 2012, remains valid and does not need to be revised. A non-substantive change was made to the text of the rule which does not impact the original intent of the proposed rule. The dates for the proposed seasonally uncertified shellfish classification upgrade in Northwest Harbor had been omitted from the original express terms, but were included in all other rule making documents. The dates were added to the express terms in this rule making package, in 6 NYCRR 41.3(b)(5)(viii)('b'), for consistency and accuracy. Minor typographical errors were also corrected throughout the document.
Revised Regulatory Flexibility Analysis
The original Flexibility Analysis for Small Businesses and Local Governments Statement, published in the New York State Register on May 30, 2012, remains valid and does not need to be amended. A non-substantive change was made which does not impact the original intent of the proposed rule. The dates for the proposed seasonally uncertified shellfish classification upgrade in Northwest Harbor had been omitted from the express terms but were included in all other rule making documents. The dates were added to this rule making package, in 6 NYCRR 41.3(b)(5)(viii)('b'), for consistency and accuracy. Minor typographical errors were also corrected throughout the document.
Revised Rural Area Flexibility Analysis
Amendments to Part 41 of Title 6 NYCRR will not impose an adverse impact on rural areas. Only the marine and coastal district will be directly affected by regulatory amendments to open or close shellfish lands. The Department of Environmental Conservation has determined that there are no rural areas within the marine district, and no shellfish lands within the marine district are located adjacent to any rural areas of the state. The proposed regulations will not impose reporting, record keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by amendments to Part 41, the Department of Environmental Conservation has determined that a Rural Area Flexibility Analysis is not required.
Revised Job Impact Statement
The original Job Impact Statement, published in the New York State Register on May 30, 2012, remains valid and does not need to be amended. A non-substantive change was made to the express terms of the rule which does not impact the original intent of the proposed rule. The dates for the proposed seasonally uncertified shellfish classification upgrade in Northwest Harbor had been omitted from the original express terms, but were included in all other rule making documents. The dates were added to the express terms in this rule making package, in 6 NYCRR 41.3(b)(5)(viii)('b'), for consistency and accuracy. Minor typographical errors were also corrected throughout the document. Minor typographical errors were also corrected throughout the document.
