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 Northern Catskill Riparian Areas: Kaaterskill Falls, Kaaterskill Clove, Platte Clove, and Colgate Lake, of the Forest Preserve in the Catskill Park.

3. Needs and benefits:

The Northern Catskill Riparian Areas is composed of four separate areas, encompassing almost 2,000 acres of Forest Preserve lands in the Towns of Catskill, Hunter, and Jewett in Greene County, and a small portion in the Town of Saugerties, in Ulster County.

The Kaaterskill Clove Riparian Corridor is in the towns of Hunter and Catskill in Greene County, along State Route 23A. It begins at the intersection of Spruce Creek and Kaaterskill Creek and extends downstream on Kaaterskill Creek about 2 miles to the state land boundary. The corridor extends 300 feet from each side of the creek bed or to Route 23A, whichever is the greater distance.

The Kaaterskill Falls Riparian Area is in the town of Hunter, Greene County. It begins 150 feet upstream of Kaaterskill Falls, located on Spruce Creek and extends to the base of the waterfalls, including the stone staircase and the mid-pool. The regulated area extends 300 feet from each side of the creek bed or to the connector trail to the escarpment trail, whichever is the greater distance.

The Platte Clove Riparian Corridor is in the town of Hunter in Greene County and a small portion of the town of Saugerties in Ulster County. It begins at the state land boundary near the intersection of Platte Clove Road and Steenburgh Road, extending downstream along the creek, about 1.6 miles. The regulated corridor extends 300 feet from each side of the creek or to Platte Clove Road, whichever is greater.

The Colgate Lake Wild Forest Area is in the town of Jewett in Greene County, including about 1,375 acres at the eastern end of County Route 78 (Colgate Lake Road), bordered by the Windham-Blackhead Range Wilderness.

These areas have been popular public destinations since before the state began acquiring land in this area, which began in 1930 and extended through the 1960s, ending most recently in 2016. Kaaterskill Falls has been a tourist destination since the mid-1800s. As a result of increased social media and New York tourism promotion, public use has increased dramatically. The Department estimates approximately 100,000 people visit the site each year. Public use has also increased dramatically in the Kaaterskill Clove area during the summer over the last decade, as people use the area mainly to swim and picnic. Platte Clove is used year around, including ice climbing in the winter. The Colgate Lake area is one of the few public lakes available to the public in this portion of the Catskills and is heavily used during the summer.

Due to this dramatic increase in public use, serious public health and safety issues are being created. The natural resources of the areas are rapidly becoming despoiled and fragile ecosystems are being degraded. There have been numerous fatalities over the last decade in these areas. Multiple people have fallen to their deaths at Kaaterskill Falls, Kaaterskill Clove, and Platte Clove. In addition, a person was paralyzed at Colgate Lake as a result of unsafe diving.

The Department has improved safety at Kaaterskill Falls with the installation of a viewing platform, stone staircase, sections of split rail fencing, and the installation of a foot bridge upstream of the falls, allowing people to cross the stream safely. However, even with these measures, people still engage in unsafe behaviors, such as wading in a very slippery stream just upstream of the falls and walking along the cliff faces.

The actions of people at Platte Clove and Kaaterskill Clove has resulted in recent fatalities and injuries. This regulation is intended to reduce the number of people who use the area, and restrict inappropriate activities to protect the public health and safety and the resource.

Colgate Lake provides a unique experience in the Catskills. Access to a small public lake for swimming and picnicking is uncommon in the northern Catskills. Public use of this area continues to increase, as people hear about this resource, especially through social media, and come to enjoy “a quiet” location. Site degradation is occurring in the immediate area adjacent to the lake and the popular camping sites nearby within this Wild Forest unit. These regulations are targeted to reduce the number of people who recreate here, provide an enjoyable user experience, and protect the resource.

Site degradation is also an issue at Kaaterskill Falls, Kaaterskill Clove, and Platte Clove. The trampling of vegetation has resulted in exposed and compacted soil. Trees are being stripped of their limbs for firewood, and indiscriminately located campfires are creating carbon scars on the ground. Garbage, trash, and broken glass are despoiling the wild character of the areas and raising public safety concerns.

The use of portable generators and audio devices have negatively impacted the quiet and solitude of these areas. The regulation will prohibit the use of portable generators and require that an individual listening to music must utilize headphones or other similar devices. Under current regulations, section 196.8 (b), portable generators, and other motorized equipment, are prohibited in Wilderness Areas. The Platte Clove Riparian Corridor is located within the Indian Head Wilderness, where the use of portable generators is already prohibited.

The conditions outlined are proposed to be addressed by varying levels of regulation in the four areas, as described below.

The following proposed restrictions would apply in all areas, except for people that are legally camped:

1. No fires, including gas grills and propane stoves

2. No glass containers except when containing medicine (currently posted by sign only at Kaaterskill Clove)

3. No playing audio devices without a personal noise damping device

4. No alcohol

5. No portable generators

In Kaaterskill Clove and Platte Clove, a further proposed restriction is closure of the area from dusk (1/2 hour after sunset) to dawn (1/2 hour before sunrise), excepting legal campers, licensed hunters, anglers, trappers, and those on marked trails. It is dangerous for individuals to hike in this area at night. High cliff faces and very steep terrain are not evident in the dark and a person falling can be seriously injured or killed.

At Kaaterskill Falls, two additional restrictions include: the prohibition of people entering the area within six feet of a cliff edge (except on marked trails, by ice climbers, or those rappelling by rope) and the prohibition of people entering the water within 150’ upstream of the falls. The proposed restrictions are for the safety of users. There are numerous high cliffs accessible to hikers, resulting in falls leading to serious injury or death. The stream bed is extremely slippery and stepping into the water near the edge of the falls can be dangerous. A tragic accident occurred several years ago when a woman was swept over the falls after slipping while stepping into the water to cross the stream above the falls. Local law enforcement and public safety officials are the first responders to incidents on these areas. Local governments support the regulatory proposal.

The Department has presented the proposed regulation at several meetings of local stakeholders in this area of the northern Catskills, including the Kaaterskill Clove working group and the Catskill Forest Preserve Advisory Committee. Local governments, including tourism and the county planning department, along with local user groups, first responders, sports people, and the hiking community, have attended these meetings. In addition, information regarding the Department’s intent to propose these regulations, content of the regulation, and the public process associated with the rulemaking, will appear in a widely distributed newspaper in the area. A public meeting in the local community will also be held during the formal regulatory comment period. All regulatory documents will appear on the Department’s website.

4. Costs:

There are no costs to the regulated community as a result of this proposed regulation. Costs to the state for the additional management actions are minimal and are estimated at $2,500 for new signage and posting of the Colgate Lake Wild Forest.

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 Northern Catskill Riparian Areas 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 not adequate in protecting the Northern Catskill Riparian Areas because of their unique characteristics, remote locations and very high level of public use.

Closing these areas 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. Closure would also be impractical due to the number of people who use these areas. Any closure would be ignored and enforcement would not be feasible.

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’ website, signage posted on the property, and by working with user groups and other stakeholders to help disseminate information regarding the regulations.

Adoption of a new section 190.36 to 6 NYCRR will address public safety and natural resource degradation issues on the Northern Catskill Riparian Areas 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 Northern Catskill Riparian Areas.

Adoption of a new subdivision 190.36 will address public safety and natural resource degradation issues on the Northern Catskill Riparian Areas 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 Northern Catskill Riparian Areas.

Adoption of a new section 190.36 to 6 NYCRR will address public safety and natural resource degradation issues on the Northern Catskill Riparian Areas while still providing a quality outdoor experience for users. 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 regulations relate solely to protecting public safety and natural resources on the Northern Catskill Riparian Areas.