Department of Environmental Conservation

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Section 190.35 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 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.