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Parts 59, Section 59.4 - State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas, and Part 190, Section 190.24 - Boat Launching Sites and Other Sites From Which A Watercraft May Be Launched - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory Authority

The proposed amendments to 6 NYCRR Part 59 and section 190.24 seek to control the introduction and spread of invasive species by prohibiting the launching of watercraft from boat launch facilities and fishing access sites under the jurisdiction of the Department of Environmental Conservation (Department or DEC) unless they are drained and have no visible plant or animal life attached to the watercraft, trailer or associated equipment. Environmental Conservation Law (ECL) Section 3-0301(d) provides for the care, custody and control of the Forest Preserve. ECL Section 9-0105(1) gives the Department the power, duty and authority to exercise care, custody and control of State lands. ECL Section 9-1709(1) directs the Department of Environmental Conservation, in cooperation with the Department of Agriculture and Markets, to restrict the sale, purchase, possession, propagation, introduction, importation, transport and disposal of invasive species. ECL Section 11-0303(1) provides that the Fish and Wildlife Law vests in the Department the efficient management of the fish and wildlife resources of the State, including the maintenance and improvement of such resources as natural resources of the State and the development and administration of measures for making them accessible to the people of the State. ECL Section 11-0305(9) empowers the Department to manage and control public fishing areas. ECL Section 11-2101 empowers the Department to make regulations for the use of State-owned boat launching sites and State-owned boat-access sites. DEC is also empowered to guarantee the beneficial use of the environment without risk to health and safety (ECL Section 1-0101(3)(b)), promote and coordinate the management of water, land, fish, wildlife, and air resources (ECL Section (1)(b)), provide for the propagation, protection, and management of fish and other aquatic life and wildlife (ECL Section 3-0301(1)(c)), provide for the protection and management of marine and coastal resources and of wetlands, estuaries and shorelines (ECL Section 3-0301(1)(f)), promote control of weeds and aquatic growth, and develop methods of prevention and eradication assuring the preservation and enhancement of natural beauty and man-made scenic qualities (ECL Section 3-0301(1)(k)).

2. Legislative Objectives

ECL Section 9-1701 states the findings of the New York State Legislature concerning the threat that invasive species represent to the environment and economy of New York State. Specifically, the legislature found that invasive species are having a detrimental effect upon the State's fresh and tidal wetlands, water bodies and waterways, forests, agricultural lands, meadows and grasslands, and other natural communities and systems by out-competing native species, diminishing biological diversity, altering community structure and, in some cases, changing ecosystem processes.

The proposed amendments to 6 NYCRR Part 59 and section 190.24 will provide a means by which DEC can control the transport of aquatic invasive species by watercraft, trailers and associated equipment used at DEC boat launches and fishing access sites. Watercraft, trailers and associated equipment are one of the primary pathways by which aquatic invasive species can be introduced from waterbody to waterbody. Currently, boaters and anglers are advised to follow clean, drain, dry protocols through various outreach mechanisms, but these measures are voluntary.

The proposed amendments to 6 NYCRR Part 59 and Section 190.24 will make the cleaning and draining of watercraft mandatory at DEC facilities by prohibiting the launching of watercraft from State lands or leaving these lands unless the watercraft is drained and no visible plant or animals are in it or attached to it. Due to the difficulty of removing zebra and quagga mussels from boat hulls, a special allowance will be granted by permit to individuals removing seasonally moored or docked watercraft from a zebra or quagga mussel infested waterbody at the completion of the boating season for cleaning at the location of storage. The proposed amendments will help DEC in its efforts to prevent further introduction and spread of aquatic invasive species transported between waterbodies in or on watercraft, trailers and associated equipment while allowing legitimate transport of watercraft from zebra or quagga mussel-infested waters to a storage location.

The proposed amendments to 6 NYCRR Part 59 and section 190.24 will complement the Department's efforts to develop regulations for the sale, importation, purchase, transportation or introduction of invasive species under Title 17, ECL Article 9. While those regulations are primarily aimed at commercial pathways for invasive species introduction and spread, the amendments to 6 NYCRR Part 50 and section 190.24 address non-commercial transport of invasive species by recreational watercraft, trailers and associated equipment. The amendments will help control the introduction and spread into new waterbodies of invasive plants and animals that already exist in New York State.

3. Needs and Benefits

Watercraft, trailers and associated equipment are one of the primary transport mechanisms for aquatic invasive species. Unless this equipment is properly cleaned, drained or dried before it is used in a new waterbody, there is a high risk that aquatic invasive species can be introduced into that waterbody. Once introduced to a waterbody aquatic invasive species such as zebra mussel and Eurasian watermilfoil are extremely difficult or impossible to control or eliminate. Additionally, efforts to control or eliminate invasive species once established are costly and may not achieve the intended results. Populations of aquatic invasive species can grow to the point that they have a severe impact on recreational and commercial use of a waterbody. Excessive growth of aquatic invasive species can also substantially impact the tourism-based economies associated with these waterbodies. It has been estimated that the ecological damage and control costs associated with aquatic invasive species amount to over nine billion dollars annually in the U.S.

The proposed regulations will strengthen DEC's ability to control the spread of aquatic invasive species associated with the use of watercraft, trailers and associated equipment at the boating and fishing access facilities it administers. Boaters are currently asked to voluntarily comply with recommended advice on how to prevent the spread of aquatic invasive species as provided in various DEC publications and posted at the 390 boat launch facilities that DEC administers. The proposed regulations will allow DEC law enforcement staff to ticket any user of DEC boat launch facilities that does not drain a watercraft and remove any visible plants and animals attached to it, the trailer or associated equipment prior to launching at or leaving the site. Per ECL 71-0923, the penalty for violating this regulation is imprisonment for not more than 15 days, or a fine of not more than $250, or both fine and imprisonment.

The proposed regulations will allow boaters keeping boats in zebra or quagga mussel infested waters to obtain a free permit from the Department allowing them to depart from a launch site without removing all visible material. Such a permit would allow boaters to take their boat to a storage location (e.g. at the end of a boating season) or to an off-site boat washing station. The permit is not intended to free boaters from the obligation to remove plant or animal material associated with short term use on a body of water.

4. Costs

No cost to DEC or local governments.

5. Local Government Mandates

These amendments of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.

6. Paperwork

No additional paperwork or record keeping will result from these proposed regulations, except for the free permit that will allow boaters to transport boats from zebra or quagga mussel infested waters to a storage location.

7. Duplication

There are no other State or Federal regulations which govern the transportation of aquatic invasive species associated with boats, trailers and associated equipment that apply to all DEC boat launch sites.

8. Alternatives

DEC considered not amending Part 59 or section 190.24. Without the amendments, however, DEC will continue to rely on voluntary compliance with outreach directives to reduce the spread of aquatic invasive species. This alternative would likely result in the slow but continual expansion of aquatic invasive species introduction in New York State. Development of regulations restricting the transport of aquatic invasive species was a recommendation of the NY Invasive Species Advisory Committee in its final report titled "New York State Invasive Species Advisory Committee Recommendations of the Aquatic Invasive Species Transport Law Ad-Hoc Workgroup" completed in early 2010.

DEC considered the implication of amending Part 59 and section 190.24 without any provision for allowing boaters to leave a launch or access site with visible plant or animal material attached to the watercraft and associated equipment. This alternative would be impractical because it would prevent boaters from legally leaving lakes that harbor zebra mussels, for example, at the end of a boating season when juvenile mussels will be attached to the hull, motor and other equipment that has been submerged for a prolonged period of time. Removal of zebra mussels can best be accomplished with high pressure hot water which is not provided at DEC boating access sites.

Finally, DEC could close boat launch and fishing access facilities. While this would reduce the likelihood of the introduction of aquatic invasive species via these specific access locations, it would also have a significant negative impact on fishing and boating related recreation, particularly important to rural economies. It is estimated that recreational boating and fishing results in $4.2 billion of economic activity in New York state annually.

9. Federal Standards

There are no federal standards that apply to the transport of aquatic invasive species in New York State.

10. Compliance Schedule

These regulations, if adopted, will become effective immediately. There is no time needed to enable regulated persons to achieve compliance with this rule.

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