Mr. Colvin briefed the Council on the Special Management Area Regulations, which had been proposed by the Department and put out for public comment. The Special Management Area (SMA) regulations contained three parts: 1) general definition of Sam’s and general regulations that would apply to all Sam’s; 2) definition and identification of artificial reefs, including additional regulations specific to artificial reefs; and 3) designation of a SMA in waters around Fishers Island and regulations affecting the commercial lobster trap fishery in the Fishers Island SMA. This was initially promulgated as an emergency rule and, concurrently, a proposed rule to make the emergency rule final. Certain of the emergency rules proposed for the lobster fishery in the Fishers Island SMA were challenged in court by the State of Connecticut and a Connecticut lobsterman. The judge found in favor of the plaintiffs and voided those parts of the emergency rule requiring that those who got a permit to commercially harvest lobsters within the Fishers Island SMA to harvest lobsters only in this area and nowhere else in New York State waters.

Reacting to this ruling, the DEC decided not to enforce the Fishers Island SMA part of the rule-making. The emergency rule then expired in early February. There remains a notice of proposed rule-making (non-emergency) containing parts 1 & 2, above, that is still technically and administratively viable. However, the federal court order prohibits adopting the original rule as presented because of part 3, the Fishers Island SMA part.

The DEC will allow the proposed SMA/artificial reef rule-making to lapse completely and begin all over or to pursue a revised rule-making that addresses the concerns raised in the court suit. Mr. Colvin stated that the Department will probably restart the rule-making process with substantial changes made to the original provisions. The changes over the original would reflect concerns from the court suit as well as concerns raised about the original provisions during the public comment period. The public comment period for the revised rule-making would be 30 days. The original proposed rule-making cannot be adopted. In response to a question, Mr. Colvin indicated that the public comment period for the revised rule-making will probably begin before the April 2002 Council meeting. The comment period will probably be closed before the Council meets in May 2002.

Councilor Davi expressed reservations about the propensity to create small special management areas in New York’s Marine District. Chairman Wise noted that the DEC was given the authority by the State Legislature to adopt regulations for SMA’s and artificial reefs; there was a need to establish these regulations before specific SMA proposals were raised and conflicts over fishing on artificial reefs was a building issue.