ENV-37-09-00007-P Prohibition of Motorized Equipment on Certain Lands in the Adirondack and Catskill Parks

9/16/09 N.Y. St. Reg. ENV-37-09-00007-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 37

September 16, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-37-09-00007-P

Prohibition of Motorized Equipment on Certain Lands in the Adirondack and Catskill Parks

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of section 196.8 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101(3)(b), 2(d), 3-0301(1)(d), (2)(m) and 9-0105(1)

Subject:

Prohibition of motorized equipment on certain lands in the Adirondack and Catskill Parks.

Purpose:

To prohibit the use of motorized equipment on wilderness, primitive and canoe areas in the Adirondack Park and on wilderness or primitive bicycle corridor in the Catskill Park to enforce master plan guidelines.

Text of proposed rule:

The title to Part 196 is amended to read as follows:

OPERATION OF MOTORIZED VEHICLES, VESSELS, [AND] AIRCRAFT AND MOTORIZED EQUIPMENT IN THE FOREST PRESERVE

A new section 196.8 is added to 6 NYCRR to read as follows:

§ 196.8 Operation of motorized equipment in wilderness, primitive, primitive bicycle corridor and canoe areas within the Adirondack and Catskill Parks.

(a) Applicability. This section applies to all state owned lands in the Adirondack Park which are classified as wilderness, primitive and canoe by the Adirondack Park Agency. These lands are depicted on the New York State Department of Environmental Conservation Adirondack Forest Preserve Land Classifications Map, 2009. This section also applies to all state owned lands in the Catskill Park which are classified as wilderness or primitive bicycle corridor by the department. These lands are depicted on the New York State Department of Environmental Conservation Catskill Forest Preserve Land Classifications Map, 2009.

(b) No person or employee of a city, village, town or county government agency or employee of a state government agency other than the department shall possess or operate motorized equipment within the boundaries of an area of state land classified as wilderness, primitive, or canoe in the Adirondack Park, or an area of state land classified as wilderness or primitive bicycle corridor in the Catskill Park, except at times and locations and for purposes authorized by the department or in the performance of activities authorized by an easement or use reservation on lands subject to such easement or use reservation.

(c) The New York State Department of Environmental Conservation Adirondack Forest Preserve Land Classifications Map, 2009 and Catskill Forest Preserve Land Classifications Map, 2009 are available from and published by the New York State Department of Environmental Conservation, 625 Broadway, Albany, New York and on file at the New York State Department of Environmental Conservation Central Office and Regions 3-6 Regional and Sub-Offices.

Text of proposed rule and any required statements and analyses may be obtained from:

Peter Frank, Bureau of Forest Preserve Management, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4254, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

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 Environmental Conservation Law (ECL) provides statutory authority for guaranteeing the beneficial use of the environment without risk to health or safety or unnecessary degradation (ECL Section 1-0101(3)(b)); preserving the unique characteristics of the Adirondack and Catskill forest preserves (ECL Section 1-0101(3)(d)); providing for the care, custody, and control of the forest preserve (ECL Section 3-0301(1)(d)); adopting rules and regulations (ECL Section 3-0301(2)(m)); and exercising care, custody and control of the preserves (ECL Section 9-0105(1)).

2. Legislative objectives

The proposed rulemaking for the prohibition of public use of motorized equipment in areas of the forest preserve classified as wilderness, primitive, canoe or primitive bicycle corridor will contribute to the fulfillment of the legislative objective of the ECL by "preserving the unique qualities of special resources such as the Adirondack and Catskill forest preserves" (ECL Section 1-0101(3)(d)). Further, the proposed rulemaking will contribute to the fulfillment of the Adirondack Park State Land Master Plan (APSLMP)and the Catskill Park State Land Master Plan (CPSLMP).

Pursuant to Executive Law Section 816, the Adirondack Park Agency (the Agency) developed the APSLMP for the management of State lands within the Adirondack Park. The APSLMP classifies such lands into nine basic categories: Wilderness; Primitive; Canoe; Wild Forest; Intensive Use; Historic; State Administrative; Wild, Scenic and Recreational Rivers; and Travel Corridors. The classifications are based upon the characteristics of the lands and their capacity to withstand use. The APSLMP sets forth general guidelines for public use and administrative activities in each unit. The APSLMP provides that in wilderness, primitive and canoe areas, "Public use of motor vehicles, motorized equipment and aircraft will be prohibited." The APSLMP has been determined by the courts to have the force and effect of legislation (Helms v. Reid, 394 N.Y.S.2d 987; Supreme Ct., Hamilton Co., 1977).

Though the legislature did not specifically mandate the development of the CPSLMP as it did the APSLMP, the Department developed the CPSLMP to satisfy the general requirements of the ECL and to assure that the management of Forest Preserve lands in the Adirondack and Catskill Parks generally would be consistent. The CPSLMP classifies State lands within the Catskill Park into five basic categories: Wilderness, Wild Forest, Intensive Use, Administrative and Bicycle Corridor. The CPSLMP provides that in wilderness areas, "Public use of motor vehicles, motorized equipment and aircraft will be prohibited."

3. Needs and benefits

Since January 1, 1895, the New York State Constitution has directed that the forest preserve be "forever kept as wild forest lands." The APSLMP and CPSLMP classified forest preserve lands within the Adirondack and Catskill Parks and established guidelines for the management of the lands in each classification. Both the APSLMP and CPSLMP define wilderness areas as State lands "where the earth and its community of life are untrammeled by man-where man himself is a visitor who does not remain," having "outstanding opportunities for solitude or a primitive and unconfined type of recreation." Both master plans provide that the primary management guideline for wilderness is to achieve and perpetuate a natural plant and animal community where man's influence is not apparent. Freedom from the sights and sounds of civilization is an essential characteristic of the recreational environment sought by wilderness visitors.

To protect wilderness character, both the APSLMP and CPSLMP require the Department to prohibit the public use of motorized equipment, such as chainsaws and generators, in wilderness areas. In the Adirondack Park, lands classified as primitive and canoe areas are to be managed essentially as wilderness. Therefore, the APSLMP requires the Department to prohibit the public use of motorized equipment in primitive and canoe areas as well.

Since the adoption of the APSLMP in 1972 and the CPSLMP in 1985, there have been numerous instances of the use of motorized equipment in wilderness, primitive and canoe areas by the public. Except with respect to two wilderness areas in the Adirondack Park, there is no law or regulation prohibiting the public use of motorized equipment in those areas. Existing regulations restrict the public use of motor vehicles, motorboats and aircraft on the Forest Preserve. Public motor vehicle use is addressed in 6NYCRR § 196.1. The public use of mechanically propelled vessels and aircraft is addressed in 6NYCRR § 196.4. In addition, regulations specific to the High Peaks Wilderness, 6NYCRR § 190.13, and the William C. Whitney Wilderness, 6NYCRR § 190.33, both within the Adirondack Park, include prohibitions against the public use of motorized equipment. However, no regulation prohibits the public use of motorized equipment on all Adirondack Forest Preserve lands classified as wilderness, primitive and canoe, as required by the APSLMP, and no regulation prohibits the public use of motorized equipment on all Catskill Forest Preserve lands classified as wilderness or primitive bicycle corridor as required by the CPSLMP. The proposed regulation will give Department enforcement staff the ability to enforce Master Plan guidelines intended to protect the wild character of all these areas.

The proposed regulation was discussed with representative groups at meetings of the Department's Forest Preserve Advisory Committee. The group is representative of recreational users, environmental groups and local government. All of the members were supportive of the proposed regulation. Prohibition of motorized equipment was also discussed at public meetings during development of the 2008 Catskill Park State Land Master Plan. No public comments were received opposing the prohibition during the Plan's development. Most people assume that motorized equipment is already prohibited in regulation.

4. Costs

This rulemaking would impose no costs on the regulated public. It would impose no costs on the Department, since existing staff and public information and education programs would be used to publicize and enforce the regulation. There would be no costs to local governments.

5. Local government mandates

This proposal would not impose any program, service, duty nor responsibility upon any county, city, town, village, school district or fire district.

6. Paperwork

With the possible exception of a slight increase in the number of citations issued by the Department during the first few months after the regulation would take effect, an increase in paperwork is not expected.

7. Duplication

The proposed regulation would not duplicate any existing State or Federal regulation.

8. Alternatives

The Department considered the proposed regulation to be the most beneficial of the alternatives considered. The "no action" alternative would not be acceptable, because the APSLMP and CPSLMP are explicit in requiring that the public use of motorized equipment in wilderness, primitive, canoe area and primitive bicycle corridor be prohibited. The Department could continue to adopt regulations periodically for individual management units. However, the guidelines of the APSLMP and CPSLMP regarding public motorized equipment use apply equally to all units within the wilderness, primitive, canoe area and primitive bicycle corridor classifications. The Department decided that a single comprehensive regulation would be more timely and efficient in implementing Master Plan guidelines and would send a strong message to the public that all wilderness, primitive, canoe area and primitive bicycle corridor deserve equal protection.

9. Federal standards

The public use of motorized equipment is prohibited in Federally-designated wilderness areas. There is no Federal standard that applies to the public use of motorized equipment in State-owned wilderness, primitive, canoe area or primitive bicycle corridor.

10. Compliance schedule

The proposed regulation will become effective on the date of publication of the rulemaking in the New York State Register. No time is needed for regulated persons to achieve compliance with the regulations since compliance consists of not undertaking prohibited activities, as opposed to undertaking required activities. Once the regulations are adopted, they are effective immediately and all persons will be expected to comply with them.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with these regulations because the proposal would impose no 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 the prohibition of motorized equipment on certain State land classifications within the Adirondack and Catskill Parks.

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 rule relates solely to the prohibition of motorized equipment on certain State land classifications within the Adirondack and Catskill Parks.

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 rule relates solely to the prohibition of motorized equipment on certain State land classifications in the Adirondack and Catskill Parks.