Monday, May 2, 2016

Bauer: Checks And Balances Should Protect The Forest Preserve

DEC Headquarters in AlbanyWe’re moving into an era of one-agency rule in the Adirondack Park and that should be very troubling to everyone. For nearly 45 years, management of the public Forest Preserve has been based on checks and balances between the Adirondack Park Agency (APA) and the Department of Environmental Conservation (DEC). The APA set management policy and the DEC administered the on-the-ground management of trails and other facilities. The APA created and updated the Adirondack Park State Land Master Plan, while DEC drafted individual Unit Management Plans (UMPs), which the APA reviewed for compliance. By and large this joint administration, which provided oversight, accountability, and public participation, worked well for the natural resource protection and public recreational use of the Forest Preserve.

All that is changing. There is little effective oversight by the APA and little accountability by the DEC. We’re in a new era of one-agency control.

Nothing illustrates this better than the classification and approval of the UMP of the Essex Chain Lakes Complex and the subsequent changes to the State Land Master Plan (SLMP). Simply put, what the DEC wants, the DEC gets.

Let’s go back to the summer of 2013. This is when the DEC made its initial proposals for classification of the Essex Chain Lakes lands. There were several scenarios, but the DEC’s preference was Wilderness for the Hudson Gorge area and Wild Forest for the Essex Chain Lakes area. The Wild Forest lands would be managed as a Special Management Area, which is allowable under the SLMP.

DEC’s special management area called for a ban on motorboats on the Essex Chain Lakes, a major snowmobile corridor through the area, bicycle routes, state management with motor vehicles, easy access for people to drive to the heart of the Essex Chain, and seasonal floatplane use (in the fall) on Third Lake.

The APA added a couple of new scenarios, and a package of options went to public hearing in the summer of 2013. Public comments ran 4-1 for Wilderness for the Essex Chain Lakes. By December, the APA classified the Essex Chain Lakes area as mostly Primitive with a major Wild Forest corridor through the area, separating the Primitive area from the new Hudson Gorge Wilderness area.

By using a classification gerrymander the DEC was able to secure a major snowmobile trail through the new lands to connect Newcomb, Minerva and Indian Lake. The DEC was also able to secure a Wild Forest corridor on the north side of the Essex Chain tract to facilitate its goal of easy drive-in access to the heart of the Essex Chain Lakes.

Just before Christmas in 2013, Governor Andrew Cuomo made a trip to Saranac Lake to celebrate some new state grants. In his remarks that day he talked about the Essex Chain Lakes classification as marking a new era. He said that the process was different than in the past. He said that he had got a bunch of people together and they worked out an agreement and that this was sent to the APA and they had approved it in record time.

So much for the independence of the APA.

To meet DEC’s objectives for bicycle use and management with motor vehicles, the DEC opened the area for public bicycle use on an interim basis in the summer of 2015 and at the same time proposed a new UMP that included preferred options for bicycle use and DEC management with motor vehicles in Primitive areas, something that had not been done before.

A new snowmobile trail connecting Minerva to Indian Lake via the Polaris Bridge over the Hudson River was also proposed in the UMP, despite the fact that a snowmobile trail already connected Indian Lake to Minerva. With a straight face, the DEC said it needed to shortest route to connect these communities. This new trail required cutting over five miles of a new trail 9 to 12-foot wide trail through a trailless section of the Vanderwhacker Mountain Wild Forest. Public comments ran better than 85% opposed to use retention of the Polaris Bridge and cutting the new trail through the Vanderwhacker area.

This UMP was approved in the summer of 2015, but was unusual because it was a UMP that required changes to the SLMP in order to be compliant. One lone dissenting voice at the APA called the UMP “a legal sleight of hand” and criticized the DEC for not proposing real alternatives for consideration. In essence, the APA’s review of the Essex Chain Lakes Complex UMP was a theater as decisions were made in Albany between the Governor and DEC. The APA dutifully did the paperwork and made its approvals.

The APA then moved expeditiously to formally amend the SLMP. Public hearings were set for January 2016, looking to allow bicycle use and DEC management with motor vehicles in Primitive Areas. Once again, public comments ran heavily against changes to weaken the SLMP. In March 2016, APA voted to amend the SLMP. This was the first time in the history of the APA that it acted to weaken the SLMP.

Through a classification gerrymander and weakening of the SLMP, the DEC got virtually everything it initially proposed. Today, there is not much difference between the Essex Chain Lakes Primitive Area and Wild Forest corridors and the DEC’s original proposal for a Wild Forest Area with a special management area zone.

Both prohibit motorboats and allowed management with motor vehicles, both allow bicycles and snowmobiles trails, and both allow easy drive-in access to the heart of the Essex Chain Lakes. The only thing the DEC failed to get was seasonal floatplane access on the Essex Chain Lakes.

The costs have been high. The APA has lost all independence. Forest Preserve classification has been made into a process of spot zoning to accommodate different recreational uses. The State Land Master Plan has been weakened. The natural resources of the Forest Preserve will be diminished as a major new snowmobile trail will be cut through the Vanderwhacker Mountain area and logging roads will be maintained and not allowed to be reclaimed by the forests in the Essex Chain tract.

Welcome to the era of one-agency rule in the Adirondack Park.

Photo: DEC Headquarters in Albany, courtesy Wikipedia user Kurtman518.


Peter Bauer

Peter Bauer is the Executive Director of Protect the Adirondacks.

He has been working in various capacities on Adirondack Park environmental issues since the mid-1980s, including stints as the Executive Director of the Residents’ Committee to Protect the Adirondacks and FUND for Lake George as well as on the staff of the Commission on the Adirondacks in the Twenty-First Century and Adirondack Life Magazine. He served as Chair of the Town of Lake George Zoning Board of Appeals and has served on numerous advisory boards for management of the Adirondack Park and Forest Preserve.

He lives in Blue Mountain Lake with his wife and two children and enjoys a wide variety of outdoor recreational activities throughout the Adirondacks.




19 Responses

  1. Larry Roth says:

    The APA has been converted into a rubber stamp; DEC is whatever Cuomo wants it to be.

  2. Paul says:

    Let’s wait and see what the court has to say on this recent suit they have filed. If much of this is accurate things should easily go in favor of the party filing the complaint.

    Let’s keep in mind that all through this one fact stands clear. Thousands of acres of new Wild Forest, Wilderness, and Primitive areas have been added to the Forest Preserve.

    • Peter Bauer says:

      Paul — I agree with you. I had one local government official tell me that the Wilderness-Wild Forest-Primitive classification review was simply a contest over the crumbs. He wanted the Essex Chain Lakes area to be another Goodnow Flow, in fact a place with two or three times the development as the Goodnow Flow. So, indeed, the Essex Chain lands will grow steadily into a mature and diverse forest in the decades ahead, a wild and resilient place that, hopefully, will remain a great forest in our ceaselessly changing world.

  3. Thirdgeneration says:

    The Essex Chain management plan was determined by the Governor and local government long before the APA saw it. Pure corruption of the process. MAny many thanks to APA commissioner Richard Booth, Dave Gibson, you Peter, and others who have shed considerable light on this.

  4. Sandy says:

    Sadly, this is the trend of the whole country; New York State in particular. When advocates of a plan achieve their goals by avoiding due process, because one branch of government or regulating body has usurped too much power, they fail to see to they ultimately lose more than they gain. Perhaps some day the balance of power can be restored among agencies overseeing the Adirondacks, I’m not so sure about the State and Nation.

    We do need to find ways to let everyone use the Park, but not every activity everywhere. Some activities are simply too destructive.

    • Paul says:

      Sandy, There was plenty of due process. Just look at all the documents and maps and other stuff put together by the DEC and then the APA. Along with all the legal review.

      It is the decision that some folks don’t like. You can’t really say that due process was avoided.

      And the process isn’t over since it is all being challenged in court. People here can’t honestly say that the Governor controls the courts too.

      • Peter Bauer says:

        Paul,

        I disagree. The process was flawed in many ways. Overwhelming public comments were not considered seriously, but dismissed during the classification period.

        During the UMP process one APA Board member chided the DEC, and APA, for not providing genuine alternatives by which to evaluate snowmobile trail routes. DEC and APA sent several alternatives to public hearing that were designed to fail, were not real alternatives.

        Then the way in which the Snowmobile Trail Guidance was circumvented was also pretty poor. The Guidance says no trail duplication but the heart of the Essex Chain UMP is trail duplication as Indian Lake and Minerva are already connected with a permanent trail through easement lands (where the state bought the snowmobile trail rights) and on a trail already cut through the Forest Preserve, which even includes a huge existing snowmobile bridge over the Cedar River.

        Remember the one time that the Dick Booth got to question the DEC, the APA chair and the APA counsel interrupted him more than 15 times to prevent a “cross examination.” DEC was never held accountable for the way it undermined and circumvented the Wild, Scenic and Recreational Rivers Act.

        During the process to change the State Land Master Plan the APA never looked at any real data about mountainbike use on dirt roads. They never compared user preferences for single track trail networks, like in the Wilmington Wild Forest. Basically, they made data-free decisions.

  5. mike says:

    The Park is a political creation. Our current Governor was lauded for buying vast acreage. The APA members are his appointees. The DEC is run by his appointees. For many many years, the region’s advocacy groups have basically made all the big choices. But this Governor took the step of listening to local people, local government, and got involved in finding a complicated path forward that attempted to address many concerns. The benefits have been grand, including the largest land acquisitions in a very long time.

    The disorganized 130,000 residents never had full time professional lobbyists working the halls of Albany, only the advocacy groups, and they don’t give a hoot about the residents ideas. So this governor is the guy who lends them an ear and folks like Peter don’t like it. I think it is great he is so involved with the place.

    It won’t last. The next Governor will probably be someone that doesn’t even know where the Park is and won’t care much about it.

  6. ADK Resident says:

    Bauer is a fool if he thought APA was an Independent Agency. It is Part of the Executive Department of New York State. The New York State Executive Department is the department of the New York state government that serves as the administrative department of the Governor of New York (Executive Law § 30. “There shall continue to be in the state government an executive department. The head of the executive department shall be the governor. The governor may appoint such subordinates and employees as may be necessary for the exercise of his powers and the performance of his duties as head of the executive department, and may prescribe their duties and fix their compensation within the amounts appropriated therefor.”). APA’s Executive Director and all board members are appointed by the governor. Different Governors manage differently. Cuomo and the second floor staff are VERY hands on.

    Take a read of by Michael Shnayerson’s “The Contender” (ISBN: 978-1455521999). No one should be surprised about how the State is being governed.

  7. Todd Eastman says:

    http://apa.ny.gov/About_Agency/index.html

    The Adirondack Park Agency (APA) was created in 1971 by the New York State Legislature to develop long-range land use plans for both public and private lands within the boundary of the Park. The APA is a New York State governmental agency with an eleven-member Hudson Riverboard, and a staff consisting of 54 people. The Agency Board meets monthly to act on Park policy issues and permit applications. Agency Board meetings take place the second Thursday and Friday of each month and are open to the public.

    http://apa.ny.gov/About_Agency/responsibilities.htm

    The APA is responsible for maintaining the protection of the forest preserve, and overseeing development proposals of the privately owned lands. The Agency prepared the State Land Master Plan, which was signed into law in 1972, followed by the Adirondack Park Land Use and Development Plan in 1973. Both plans are periodically revised to reflect the changes and current trends and conditions of the Park. The mission of the APA is to protect the public and private resources of the Park through the exercise of the powers and duties provided by law. This mission is rooted in three statutes administered by the Agency in the Park, they are:

    The Adirondack Park Agency Act
    The New York State Freshwater Wetlands Act and
    The New York State Wild, Scenic, and Recreational Rivers System Act.

    ADK Res., I hope this helps…

    • ADK Resident says:

      Todd,

      Time for a civics lesson:

      You may recall from your social studies classes that NYS Government, like the Federal Government is made up of three branches. ALL state agencies, including DEC and APA are part of the Executive Branch – with functions under the governor’s control.

      Read the laws not the website .. APA Act, §803 begins “There is hereby created in the executive department, the Adirondack park agency, which shall consist of the following members : the commissioner of environmental conservation, the secretary of state, the commissioner of commerce and eight members to be appointed by the governor by and with the advice and consent of the senate..” Sure APA has a mission, which is paraphrased in the paragraphs you referenced, but it is still the Governor’s agency, and the Governor is responsible for APA’s operations, as a agency in the Executive Department, just as he is any of the other state Departments as outlined in Article 5 of our State Constitution:

      [Civil departments in the state government]
      §2. There shall be not more than twenty civil departments in the state government, including those referred to in this constitution. The legislature may by law change the names of the departments referred to in this constitution. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 2, 1943; November 3, 1959; November 7, 1961.)

      [Assignment of functions]
      §3. Subject to the limitations contained in this constitution, the legislature may from time to time assign by law new powers and functions to departments, officers, boards, commissions or executive offices of the governor, and increase, modify or diminish their powers and functions. Nothing contained in this article shall prevent the legislature from creating temporary commissions for special purposes or executive offices of the governor and from reducing the number of departments as provided for in this article, by consolidation or otherwise. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 7, 1961.)

      [Department heads]
      §4. The head of the department of audit and control shall be the comptroller and of the department of law, the attorney-general. The head of the department of education shall be The Regents of the University of the State of New York, who shall appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department. The head of the department of agriculture and markets shall be appointed in a manner to be prescribed by law. Except as otherwise provided in this constitution, the heads of all other departments and the members of all boards and commissions, excepting temporary commissions for special purposes, shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner to be prescribed by law. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 7, 1961.)

      In addition, APA Act §814 clearly gives the power to the Governor of approval for ANY changes to the APSLMP, Ergo, any changes to the APSLMP are the prerogative of the Governor, ultimately. If the Governor wanted a snowmobile trail across the Essex Chain, it was going to happen, regardless of what the APA board or DEC preferred.

      • Todd Eastman says:

        Thanks Captain Obvious!

        The steps to alter the SLMPs are rarely taken by the executive branch. By breaking standard procedures, Andrew the Short has decided to open a can or worms.

        Good luck with fixing this clusterfuz…

  8. ADKerDon says:

    The APA never represented the Adirondack people nor their desires. As long as they are government appointees it never will. The commissioners of the APA should be directly elected by the people living in the Adirondacks or it should be abolished. With the DEC and local government at least some respect and common sense prevails in economic benefits, access, and use of these lands and waters by all the people. Abolish the APA and the forest preserve!

    • Paul says:

      In some cases local town zoning has gone farther than the APA. And the town really seem to have more teeth when it comes to enforcement. Look at the case involving illegal boathouses on Lake Placid recently.

  9. John says:

    Anyone who followed the ACR debacle knows that the Governor called the shots on that decision. It was clear well before the Adjudicatory Hearing was over that the process was being rushed to get to the decision preferred by the Gov.

    • Paul says:

      Do you have a shred of evidence for any of these wild accusations? Just because people here parrot that stuff in these blogs does not make any of it true. Again there was the Governor pulling the strings on the judge who ruled that the whole thing was perfectly legit?

  10. Charlie S says:

    “There is little effective oversight by the APA and little accountability by the DEC. We’re in a new era of one-agency control.”

    Imagine what things would be like if the Feds were running the show!

  11. Bruce says:

    I’m curious Peter,

    “Checks and balances.” Like the federal government, checks and balances don’t always work in accordance with our views of how they should, but they’re there all the same. So I wonder, if the Essex Chain plan was going as you think it should, would you be talking about a lack of checks and balances? I mean if there are no checks and balances as you say, then they’re not there no matter what decision is reached.

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