Monday, November 20, 2017

Gibson: Boreal Road Construction Skirts Law

DEC and APA Staff Visit Jordan River in 2001 (Dave Gibson Photo)Previously I wrote in the Almanack about “a notice for public comment about what seems a relatively innocuous, relatively short (1.25 mile) road construction… has been circulated by the NYS Department of Environmental Conservation, or DEC… This is actually not a small deal at all.”

Indeed it is not a small deal. I wanted to follow up my earlier post with one that examines whether the State DEC has properly applied the law in its initial review of this project affecting more than 20,000 acres of private land easement, as well as State Land near the border of St. Lawrence and Franklin Counties. All of this area is part of a low-elevation boreal ecosystem identified for its significance by State and private ecologists since the 1970s.

To review, SEQRA (the State Environmental Quality Review Act) requires any State or local agency that undertakes, funds, or approves a project to evaluate the actual or potential environmental impacts of the project prior to taking final action. The agency must require preparation of an Environmental Impact Statement (EIS) if the proposed action may have any significant environmental impacts. Even one such likely adverse impact triggers preparation of an EIS, or it should.

The New York State Department of Environmental Conservation (DEC) announced its intention in September to amend both the 5 Mile Conservation Easement (CE) Interim Recreation Management Plan and the Conservation Easement portion of the Raquette Boreal-Jordan Unit Management Plan (UMP) to construct a connector road between the Five Mile and the Kildare CEs in the town of Hopkinton, St. Lawrence County. The area is due east of Carry Falls Reservoir. “This road will allow motor vehicle access for the first time to thousands of acres of the Kildare Conservation Easement” DEC wrote in a press release.

The DEC announcement neglected to mention tasks that DEC agreed to undertake under an approved 2006 Unit Management Plan to evaluate whether significant environmental impacts could result from opening up more motorized access to this very area. Were those tasks done? What were the results? Did the agency responsible for administering SEQRA actually comply with it?

In late October, Adirondack Wild asked for and DEC provided relevant SEQRA forms that the department filled out about the draft amendment to the plan including the road connector project. They show the following, as detailed in a joint comment letter from Adirondack Wild and Earthjustice submitted to DEC earlier this month .

  • Concerning the draft amendment, DEC issued itself a negative declaration of significance under SEQRA, meaning that the road project would have not a single actual or likely adverse environmental impact, and would therefore not require preparation of an EIS;
  • In its Environmental Assessment Form for the proposal, or EAF, DEC limited its description of the proposed action to just five acres around the 1.25 mile road connector despite the fact that the connector would for the first time since the easement was acquired in 1988 allow motorized access to 17 miles of the Lassiter Haul Road and spur roads that come off of it. In all the project truly affects more than 20,000 acres;
  • The spur roads off the Haul Road extend to the border of Forest Preserve classified as Primitive and Wild Forest. In fact, the proposed amendment acknowledges that “in addition to providing access to and through the Kildare CE (Conservation Easement) lands, these roads also provide access to the adjacent Raquette River Wild Forest and Raquette-Jordan Boreal Primitive Area.” Forest Preserve Primitive classification must by law be managed as wilderness. That wilderness management is impossible if this proposal brings new motorized uses right up to very border of Primitive and facilitates illegal motorized access beyond that border.
  • Furthermore, the EAF fails to identify or describe the natural resources that exist in those potentially affected areas, including the designated “Scenic” Raquette, Jordan, and St. Regis rivers; the numerous high value wetlands in the Unit; the eleven notable ecological communities identified by the New York Natural Heritage Program; and the six endangered, threatened or special concern species in the Unit;
  • The state endangered spruce grouse was the subject of a 2012 DEC “recovery plan” describing grouse habitat from Kildare Pond on the west, to the West Branch of the St. Regis River on the east, and extending to Cold Brook to the south. This area includes the location of the proposed 1.25-mile connector road and many of the roads which will, for the first time, be opened to public motorized access. Yet, this spruce grouse habitat is neither described nor mapped in the EAF, nor does the EAF identify areas which spruce grouse are known to currently occupy, such as the upper Jordan River. In fact, the proposed public motorized access to the terminus of the Cold Brook Road and East Haul Road appears to come within several miles of occupied spruce grouse habitat. This fact is not acknowledged or its potential impacts assessed in the Department’s SEQRA analysis;
  • In addition to the spruce grouse, five other endangered, threatened or special concern species were identified by the 2006 UMP. Nothing is mentioned in the DEC EAF except the spruce grouse. Even for the spruce grouse, the 2017 EAF fails to note that the area contains nine of the most significant sites in the State still thought to support this endangered bird. “The number of sites and their close proximity to one another undoubtedly makes the Raquette Boreal Forest one of the most important areas in the state with regard to the preservation and possible recovery of spruce grouse populations in New York State” (from 2006 UMP).
  • The EAF also fails to note that the area “also supports populations of several other rare boreal specialist bird species that, in New York State, are restricted to the Adirondacks, including palm warbler, gray jay, blackbacked woodpecker, boreal chickadee, yellow-bellied flycatcher, and olive-sided flycatcher” (UMP). All of these species are in decline in the Adirondacks and all are sensitive to various kinds of disturbance;
  • In the EAF, DEC checks “No, or small impact may occur” in every box related to Impact on Plants and Animals, despite the documented presence of historic and occupied endangered spruce grouse habitat, the other rare boreal bird specialists, and the known eleven ecologically significant communities identified by the Natural Heritage Program in which DEC staff play a very significant role;
  • The EAF fails to take note of the State of New York Commission on the Adirondacks in the 21st Century (1990) recommendation that eventually a good portion of this area be incorporated in a Boreal Wilderness area;
  • The 2006 Unit Management Plan for this very area clearly states that DEC is obligated to carefully assess the potential impacts of new public motorized access on the unique and sensitive resources in the Boreal Primitive Area and adjacent conservation easement lands: “Prior to any management proposals to open roads or trails for public motorized uses, a careful assessment of projected use must be conducted, in order to relate how those proposals may impact areas surrounding roads or trails. The New York Natural Heritage Program identifies eleven notable ecological communities, four rare or endangered animal species and two rare plant species within the Raquette Boreal Unit. The protection of these resources is a primary management objective for this plan. Therefore, prior to any increased public motorized use an assessment of impacts on these communities, associated with that use, must be conducted.”
  • The UMP continues: “Currently, there is no public motor vehicle access to the Lassiter Easement lands nor the Forest Preserve lands east of Carry Falls Reservoir . . . Should motor vehicle access to the unit be proposed in the future an amendment to this plan will be required along with a more detailed analysis of potential impacts associated with motor vehicle access.”

To our knowledge, none of these studies and detailed analysis has been conducted and completed. The 2006 UMP also identified an ongoing problem with illegal motor vehicle use, and cited the need for increased law enforcement resources as another potential impact of increased public motorized access. However, neither the EAF nor the Negative Declaration recognize, much less assess, these potential impacts.

Having failed to collect the baseline data and monitor the area, DEC cannot justify its confidence that the limited motor vehicle use to date (restricted to the private owners, and their leaseholders and guests, and illegal ATV traffic) has not had adverse impacts. Now those uses are to greatly expand.

Yet, lacking the promised studies from 2006 and the data that might result, the Sept. 2017 DEC EAF form concludes:

“There are no significant adverse environmental impacts associated with construction of the proposed road…. Accordingly, this negative declaration (of significance) is issued.”

In sending Adirondack Wild and Earthjustice the EAF, DEC wrote: “The Department anticipates receiving public comments that will result in revisions to this proposal. If that occurs, a revised proposal together with any corresponding SEQRA documents will be re-noticed with a new opportunity for public comment.”

Adirondack Wild’s is by no means the only comment letter. DEC has received many. Hopefully, this degree of public pressure on the DEC will cause it to take SEQRA seriously, withdraw its road construction proposal and undertake the studies and monitoring that were conditions of the 2006 UMP approval by the Adirondack Park Agency.

Simply opening up more roads to public motorized use without understanding the actual and potential impacts on an ecosystem of such statewide significance, impacts accelerated by climate change, is a clear violation of law.

DEC needs to do its job, follow up the work of its own biologists and protect this very sensitive and rare low-elevation boreal ecosystem. We’re not making any more of it.

Photo: DEC and APA staff visit the Jordan River with members of the Forest Preserve Advisory Committee in 2001.


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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

14 Responses

  1. Big Burly says:

    Seems that some in the current senior management of DEC think of themselves as above their own laws and regulations. A recent Article 78 ruling in the Supreme Court in Malone confirmed that in another situation where DEC did what they pleased … illegally.

    Keep shining the spotlight David.

  2. Chris says:

    This stuff doesn’t just happen. It’s obvious, once again, that this is a war between road builders and our ecology:

    …DEC issued itself a negative declaration of significance under SEQRA, meaning that the road project would have not a single actual or likely adverse environmental impact, and would therefore not require preparation of an EIS;

    In its Environmental Assessment Form for the proposal, or EAF, DEC limited its description of the proposed action to just five acres around the 1.25 mile road connector despite the fact that the connector would for the first time since the easement was acquired in 1988 allow motorized access to 17 miles of the Lassiter Haul Road and spur roads that come off of it. In all the project truly affects more than 20,000 acres;

  3. Paul says:

    Why don’t you work something like this out before the state spends all the money on the easement?

  4. Walt Paul says:

    The Kildare and Five mile conservation easements have extensive hardened road systems and are actively logged working forest. The pictures being painted by A.w.,A.C. and Protect are grossly inaccurate and serial embellishments seeking to rob the taxpayers of recreational opportunities purchased for all stakeholders not just the wilderness, roadless forest groupies. The DEC and the Governor need to stand up to the environmental pay to play bullying, fake science and hollow legal/regulatory pontification.
    Harvesting of spruce on the easement has removed spruce grouse habitat on the Kildare easement recovery work is to the east.
    Self serving hot air and delusional view of reality..disgusting!

    • Boreasfisher says:

      Would you kindly explain the gross inaccuracies and serial embellishments in your accusation? All I can find here is a carefully reasoned and documented reference to the legal considerations DEC is required to follow. When we simply disregard an appeal to the law as bullying by those whose positions we do not like, we are destroying the fabric that holds a community together.

  5. SunnyDay says:

    David, What are the most effective actions for citizens/residents to take to ensure DEC does not succeed in yet another initiative that blatantly ignores and/or twists its “findings” and interpretation of NYS laws. (See BigBurly’s comment)

    • adkcamp says:

      public comment period has expired. It’s still worth writing them to express your opinion.

      or write a letter to any of these people:
      Kathy Moser, Deputy Commissioner, NYS DEC
      Rob Davies, Director of Lands and Forests Division, NYS DEC
      Tony Wilkinson, Director of Fish and Wildlife Division, NYS DEC
      Judy Drabicki, Region 6 Director, NYS DEC
      Randy Young, Region 6 Attorney, NYS DEC
      Fred Munk, Region 6 Natural Resource Supervisor, NYS DEC
      Bob Stegemann, Region 5 Director, NYS DEC
      Tom Martin, Region 5 Natural Resource Supervisor, NYS DEC
      Kathy Regan, Deputy Director for Planning, NYS APA

  6. Boreasfisher says:

    Shocking…thank you ADK Wild and Earth Justice.

  7. Paul says:

    Some of these numbers would be interesting. I wouldn’t be surprised if you see a decrease in activity on these parcels even with a new access road. These leases brought in lots of users to the parcels. Look at places like the Santa Clara easement lands. Those places, when they had active land lease programs, were lined with cars and trucks on the roads during hunting season. They are pretty deserted now. And pretty much nobody goes there in the off season. Look at the register for the carry to the East Branch of the St. Regis River – Nobody. The last person who signed in was probably somebody that wanted to canoe across private lands to see what sort of reaction they could stir up!

    So what you need to compare are user numbers at the peak of the lease programs and now.

  8. TrailOgre says:

    Yes …..
    But they have an issue with
    climbing anchors …….
    Which you have to be practically 2 ft away to see

    but have no problems building roads for motorized use

  9. Linda M. says:

    Have any of you people actually been on the ground to this area? My husband and I are anglers and have been on both the Five Mile and Kildare Easements. BOTH of these areas are working forests, and you literally have to dodge logging trucks. We canoed across Carry Falls Reservoir to access the Jordan River,and hiked a bit around Kildare only to be met by ATV users from the lease camps on the canoe carry on DEC land. When my husband told them ATVs weren’t allowed on state land THEY LAUGHED at him. Perhaps, if access is built, less illegal activity from the lease camp people will result. Public access is limited on the proposed road since the Five Mile Easement closes and will remain closed during hunting season. Perhaps, instead of condemning the DEC for allowing the public access to land WE PAID FOR, environmental groups could demand more ENFORCEMENT on these lands. As it stands, the wild forest is now a playground for lease camp owners, courtesy of your tax dollars.

    • Scott says:

      Sometimes for some people perceptions and expectations differ from reality and this difference leads to unhappiness.

  10. adkDreamer says:

    The State (a corporation) is a legal fiction, which by design has an agenda that is in direct conflict with the environment. DEC and APA are members of the corporation, set up as the opposition to the agenda. So the State controls both the agenda and the opposition.

    Why does this surprise anyone?

  11. Dave Gibson says:

    Linda makes good points, provides useful information, and clearly knows the area in question very well. I have been on this terrain courtesy of a tour sponsored by the DEC.

    Adirondack Wild/Earthjustice’s letter and critique center on DEC commitments made in 2006 – which have the force of law – to study, monitor conditions, and make recommendations before opening up the haul and spur road system to public use. To our knowledge they bypassed the work (budget and staff constraints are always one reason) and proceeded to open up the haul roads. Our letter is intended to remind and motivate DEC to undertake the required work they promised to do, and to follow the law.