In April, NYS Department of Environmental Conservation and Adirondack Park Agency issued draft permits and unit management plan amendments respectively that would allow NYCO Minerals to conduct mineral exploration this summer on Lot 8 in the  Jay Mountain Wilderness.

The State would authorize such activity with only the most rudimentary information about what’s currently living and growing on Lot 8, no standards by which to judge the impacts of drilling on Wilderness character and resources, and no information about potential direct and indirect impacts of mineral testing beyond Lot 8.

Recall that Lot 8 was the subject of last fall’s constitutional amendment to Article XIV, New York’s Forever Wild clause. The amendment passed by 6 percentage points. What the voters thought was approved, based upon the express language on the ballot, was a simple land exchange with NYCO. Not so. What actually passed last November was the much longer legislative language not shared with the voters (but legally authorized nonetheless). That language may authorize the state to allow NYCO to test for minerals first, before proceeding with an exchange. If sufficient concentrations of wollastonite are found and if NYCO wishes to proceed, a land exchange with the State may move forward based upon the legislature’s determination that the State is receiving fair and equal value.

But the mineral testing would go on while the land is still publicly owned and still classified as Wilderness, and therein lies a novel and very big problem.

The State is poised to permit NYCO to test for minerals, meaning to cut down over 1,200 trees, build over 13,000 linear feet of access corridors, each one 15-20 feet wide, through the Wilderness to move in the drilling equipment, lighting, motors and gasoline, and construct up to 21 fifty foot square drilling pads where drills would go down some 500 feet to test for the mineral from 7 AM – 7 PM every day except Sundays and holidays for 4-8 months of exploration. Drilling additives of uncertain toxicity would be added to the water in the drill bore.  These are just some of the direct impacts to Wilderness and to its pools and streams. Indirectly, there could be many more. As to the impacts on the local roads and human communities in Lewis and environs, there could be still more.

No Baseline Studies

What might be the direct and indirect impacts of this industrial activity on flora and fauna? Do DEC and APA expect NYCO to undertake some baseline studies to determine what’s living and growing on the 200-acre Lot 8 now before issuing a permit in order to determine if the  company can avoid significant impacts to plant and wildlife habitats? What if NYCO decides not to undertake the land exchange. Has the State been given sufficient baseline information and data so that it can determine if NYCO has returned the site to a Wilderness condition after the mineral testing has concluded? What if NYCO proceeds with the exchange, builds a new open pit mine in the Wilderness and eventually all the mineral is exhausted. Will the State receive enough baseline information now to know how to direct NYCO to properly restore Lot 8 to a Wilderness condition in twenty years?

The short answer to all these questions is no. APA and DEC are not requiring NYCO to conduct any baseline studies before it receives a permit, regardless of the fact that this is a Wilderness area within the Adirondack Park. Nor does the State even acknowledge that some of the direct and indirect impacts of mineral testing on Lot 8 just might spill over into adjoining Wilderness land that was not the subject of the amendment.

This is all pretty strange because DEC would require any hydraulic fracturing (fracking) company outside of the Adirondack Park (far from any designated Wilderness) to do a lot of baseline studies, and in the case of fracking DEC acknowledges a great many off-site impacts. That Supplemental EIS that DEC prepared for hydraulic fracturing in 2012 states that “for each acre of forest directly cleared for well pads and infrastructure in New York, an additional 2.5 acres can be expected to be indirectly impacted. Interior forest bird species with restricted breeding habitats, such as the black-throated blue and cerulean warblers, might be highly impacted.” This is interesting. I just hiked across Lot 8 with my Adirondack Wild colleague Dan Plumley and found quite a few black-throated blue warblers breeding there. Yet, DEC expresses no concern for this bird on Lot 8, nor does it posit 2.5 acre habitat impacts beyond each acre impacted by a drill pad.

For hydraulic fracturers outside of the Adirondacks, DEC would require pre-drilling and post-construction site specific habitat and wildlife assessments within 150 or more acres of contiguous forest.  Lot 8 is 200-acres and is part of an 8,000 acre Jay Mountain Wilderness area in the globally significant, protected Adirondack Park. Yet DEC and APA are requiring no site specific habitat and wildlife assessments before, during or after NYCO conducts mineral exploration.

As far as the many large, older stand of trees which Adirondack Wild’s Dan Plumley has documented growing on Lot 8, DEC’s contention that no old-growth forests exist is based on a one-day survey last August in which precisely three trees were cored to determine their ages. The samplers admitted missing large sections of the Lot. As far as amphibians that are reproducing in vernal pools on the Lot, the State is relying on aerial photographs taken in the wintertime to identify these pools. Using aerial photography alone as the sole means to identify vernal pools in any season, much less the winter is fraught with the potential for error, a fact acknowledged in wetland sampling protocols established by the Army Corps of Engineers and other professional organizations. In our recent field visit, an amphibian expert identified a highly productive vernal pool used by breeding wood frogs, spotted salamanders and other species. The vernal pool sits within 150 feet of the NYCO open pit mine and could be destroyed directly or indirectly by mine expansion. Nobody from State has seems concerned.

On behalf of its clients, Earthjustice has just written a 22-page comment letter critiquing the APA’s wholly deficient Unit Management Plan amendment and the DEC’s equally deficient Temporary Revocable Permit. Among the exhibits at the end of the comment letter is one from Dr. Michael Klemens, Ph.D., a conservation biologist. Dr. Klemens points to a rock quarry expansion project in Connecticut where he and others were hired for three years to study the actual and potential impacts on amphibians and reptiles from the expansion. Not a tree was cut or a road built during these three years to ensure that the proposed mine expansion was conducted in a manner not damaging to the environment. “This stands in stark contrast to the 200 acres of the Jay Mountain Wilderness that have been so cursorily studied,” Dr. Klemens concludes.

Sloppy, Haphazard Review

From a legal standpoint, DEC and APA are in lockstep, arguing that the Article XIV vote last November makes the Adirondack Park State Land Master Plan Wilderness guidelines and State regulations prohibiting motorized access and industrial uses on Wilderness lands null and void. The voters “implicitly repealed” all of this non-constitutional law, the State contends. If that is the case and if Wilderness guidelines in the Master Plan are implicitly repealed, by what other standards will the APA determine if the amendment to the Jay Wilderness UMP is consistent with the Master Plan? Will the public now being asked to comment know what different standards might apply to this very novel problem that has arisen on Lot 8?  They will not, because the agencies have not yet amended the State Land Master Plan, as we believe they must do before authorizing mineral exploration. Thus far, APA and DEC are picking and choosing what laws and legal standards exist for Lot 8 in a highly arbitrary manner, and in further violation of the law the agencies are ignoring any off-lot impacts.

The State appears to sanction all of this sloppy, haphazard review under great time pressure. Why? NYCO Minerals has by their own admission at least 25 years of unexploited mineral reserves on their own lands in Lewis. NYCO has just applied to double their existing output on lands they own just south of their open pit. NYCO employees have no shortage of materials with which to work. The State has all the time it needs to establish professional baseline natural resource information and clear, protective standards for mineral exploration on Lot 8. The only pressure on the agencies to act fast and sloppily is political pressure.

Earthjustice and its clients (Adirondack Wild, Atlantic States Legal Foundation, Protect the Adirondacks ! and Sierra Club Atlantic Chapter) are not re-fighting last fall’s constitutional amendment. What we are fighting for are the large trees, forests, streams, plants, vernal pools and wildlife clearly living or migrating through Lot 8 Wilderness.  What we are fighting for are clear, transparent, protective standards by which to determine and avoid unnecessary environmental impacts from industrial activity in a Wilderness area in the Adirondack Park. What we are fighting against is hasty, sloppy, unprofessional, arbitrary analysis by State agencies legally charged with being a protective steward of the NYS Forest Preserve held in the public’s trust.

Photo:  A canopy of large sugar maples growing on Lot 8, in the Jay Mountain Wilderness. Photo by Dan Plumley, Adirondack Wild.