Thursday, August 30, 2018

Will DEC Rubber Stamp New Bridge Over the Cedar River?

State agencies in the Adirondack Park are full of dedicated, hardworking employees who want to do their level best under their relevant laws and jurisdictions. However, in a situation where the same agency acts both as the applicant and the decider of an application, the public has good reason to be skeptical that there will be sufficient independence to raise difficult questions, much less objections.

This situation is apparent in the August 22, 2018 edition of the Environmental Notice Bulletin (ENB) issued weekly by the NYS Department of Environmental Conservation, or DEC. This edition of the ENB gives the public notice that a “Cedar River Bridge and Recreational Trail” is the subject of a permit application by the DEC’s Division of Lands and Forests. The decider of that permit application is the Permits Division of the same DEC.

In addition to the rather obvious internal conflict of interest at DEC, the wording in the ENB more than suggests that the permit’s issuance is a foregone conclusion. Its purpose “is to provide year-round recreational access across the Cedar River which will complete the multiple use, community connector (snowmobile) trail between Indian Lake and Minerva across the Essex Chain Lakes Management Plan (UMP).”  The ENB’s project description goes on in the same approving and conclusory vein that the “proposed bridge, which has been designed and sited in accordance with criteria established… will be [my emphasis] a 139 foot, 4 inch long and 12 foot wide free span, steel truss structure with concrete and sheet piling abutments, to be located in the vicinity of the previous bridge which collapsed in 1978.”

The ENB fails to mention that the former wooden bridge that “collapsed in 1978” was built for private land access when the surrounding shores of the river and forests on either side were owned and leased to private clubs by the Finch, Pruyn paper company in Glens Falls. The general public was not allowed access – until the land was sold to the State and became Forest Preserve a few years ago. The DEC permits office ought to question why a former wooden bridge on private land for private use which collapsed 40 years ago is relevant to today’s decision whether or not to build a much larger steel bridge on Forest Preserve for public motorized use.

How likely is it that one arm of the DEC would substantively question, much less disallow another DEC arm from completing this bridge project? One can always hope that the permits division would question it – for the reasons that follow.

This 140 foot bridge designed for snowmobiling is proposed on the “forever wild” Forest Preserve across a tranquil stretch of the Cedar River designated as “scenic” under the Wild, Scenic and Recreational Rivers Act, otherwise known as the Rivers Act. This truly scenic stretch of river is not improved by a steel truss bridge. But my viewpoint is not the issue here. We’re a nation of laws, and laws are in place (since 1972) to protect our Wild, Scenic and Recreational rivers.

The new bridge was part of a unit management plan, or UMP authorizing a new snowmobile corridor to run between the newly classified Hudson Gorge Wilderness area on one side of the dirt Chain Lakes Road and the Essex Chain of Lakes Primitive area on the other side of that road. To make this connection, the snowmobile corridor requires a bridge across the Cedar River and a second motorized crossing on the existing Polaris Bridge over the Hudson River, also “scenic”, and then a new snowmobile trail to be cut north to Newcomb.

The connection between Newcomb and Minerva, the purported destination of the corridor according to the ENB notice, is also nowhere near completion. This, too, will require another new and legally questionable motorized bridge across the “scenic” Boreas River, as well as lots of permissions across numerous private land ownerships in order to finally reach Minerva hamlet. So, the ENB notice incorrectly states that the new Cedar River bridge “will complete” the connection to Minerva. It doesn’t. That statement in the ENB notice should be changed.

Despite the connection to Minerva still being years away, DEC immediately wants to launch construction of the new steel bridge. Why does DEC need a permit or a variance from itself to build it? Because the DEC’s laws and regulations protective of “scenic” rivers like the Cedar (The Rivers Act of 1972 and its regulations) allow foot trail use only and disallow public motorized uses in order to preserve the shoreline environment and their peaceful quiet and aesthetic values for fishing, paddling and hiking. The DEC’s Final Environmental Impact Statement for the regulations implementing the Rivers Act “prohibit motorized open space recreational uses in scenic river areas” and “bridges for this use have been prohibited.” Bridges are allowed, but as part of foot trails only. The regulations further stipulate that foot trails in “scenic” river areas shall be no wider than four feet. The proposed steel bridge would have a 12-foot span.

Instead of transparently and publicly attempting to amend the Rivers Act and regulations in order to allow a motorized bridge at this location, DEC officials appear to want to sidestep the law and issue itself a permit or variance to allow the bridge’s construction right now. How can DEC justify the issuance of a permit to itself for something that is unlawful?  We will find out. On September 12 at 6 pm in the Indian Lake Byron Park building, the DEC intends to hold a legislative public hearing on the permit or variance, and will allow public comment on its permit application until Sept. 21.

The DEC already went to the effort of constructing a large, wooden bridge across the Cedar River around 1995 at a location further upstream, at a crossing where the Cedar River is legally designated “recreational,” which is permissive of snowmobile crossings and uses. That bridge was constructed, as I recall, to create a snowmobile connection between Indian Lake and Blue Mountain Lake.  Around the year 2010, the Adirondack Nature Conservancy, the successor owner to Finch, Pruyn, also went to lots of effort to extend the snowmobile trail north to Newcomb under a conservation easement that allows snowmobiling. To my knowledge, this route between Indian Lake-Blue Mountain Lake and Newcomb is regularly used in both directions by snowmobilers when snow cover permits. Some members of the public might point out, therefore, that a new motorized bridge across the Cedar is unnecessary (as well as legally questionable) because it duplicates the existing bridge and snowmobile corridor opened expressly for the purpose of connecting Indian Lake and Newcomb.

Snowmobilers would likely have different information and perspectives to offer on this matter. I’m grateful there is a public hearing for all to express themselves, and Adirondack Wild looks forward to commenting.

However, there is a way that the DEC could avoid the strong perception of self-dealing, whereby one DEC division might simply rubber stamp a permit or variance for the bridge’s construction sought by another DEC division.

In contrast to a legislative hearing, DEC could schedule an adjudicatory public hearing on the Cedar River bridge heard by an administrative law judge. These ALJs, as they are known, are trained to take evidence from all sides, compile documents, complete a hearing record and render an impartial, independent judgement. Construction of a massive steel bridge on the Forest Preserve over a river as truly scenic, protected and special as the Cedar River in apparent contravention of the Rivers Act and regulations and in apparent duplication of another snowmobile route reaching the same destination deserves the utmost care, consideration, and impartiality.

These important goals could be better reached if the DEC sponsored a meaningful, adjudicatory public hearing.

Photos, from above: Cedar River, roughly where DEC wants to build the new steel bridge; and existing snowmobile crossing of the Cedar River by Dave Gibson.

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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 Preserve

During 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.




12 Responses

  1. Jock Scott says:

    Dave, this is an interesting situation. I was one of the last people to cross the old bridge before its collapse and I remember that APA would not allow Finch to rebuild it. I think a bridge would be a great idea, especially since patrol and enforcement resources are stretched so thin; it would allow officers to access the entire Essex tract much more efficiently.

    Regarding your statement, “…where the same agency acts both as the applicant and the decider of an application, the public has good reason to be skeptical that there will be sufficient independence to raise difficult questions, much less objections.” I’m sure you’re aware that the same exact thing happened with the Essex Chain tract acquisition application. In fact, neither of the two of the primary decision makers, Betsy Lowe, DEC Regional Director, Region 5, nor the DEC Director of Natural Resource Planning approved the application, but the applicant, Rob Davies, approved it in their stead.

    Would you have supported the acquisition knowing this?

  2. David Gibson says:

    Jock, I’m not sure the two situations are analogous, but I respect your personal experience on the tract, which far exceeds my own, your view and question. To answer you, yes the organizations I’m involved with did strongly support the acquisition of the Essex Chain of Lakes for the NYS Forest Preserve and appreciated the support of the local governments involved following their discussions with the Adirondack Nature Conservancy and DEC. While we have concerns about land management decisions following the acquisition and the health of the fishery, those do not negate long-term benefits of the public’s purchase five or so years ago.

    • Jock Scott says:

      Dave, how can the two situations not be analogous? The applicant, decider, and developer are one and the same in both instances. You support one program but not the other. In my thinking, that’s the definition of hypocrisy.

  3. Teresa DeSantis says:

    Thank you David for this well-written article. I was just up there this last weekend. I walked in from the Southern side- the Indian Lake side. At the site of the proposed bridge crossing, they have staked out the ground for a wetlands delineation and marked the trees to be cut with bright orange fluorescent paint. Looking over to the North side of the river, one can see two trees marked with bright orange “X” s. Right now, the area is very peaceful and quiet, with no road noise or man-made sounds heard-perfect for solitude seekers. With those trees marked, it looks like their timetable is on a fast pace. For public comment- can you please provide us a link for those of us who cannot attend the public hearing and would like to send a written response? Thanks- Teresa the Cartographer

  4. David- can you please leave us a link for public comments to be made to be included in the State’s upcoming public hearing file? That way our comments can be included in the public hearing’s written record. Thanks- Teresa

  5. Dick Carlson says:

    This bridge is being way overbuilt, and unnecessary, as you stated. We have been trying to get a bridge replaced in Siamese Ponds across Botheration Brook for 3 years. I guess DEC will wait ’till there’s a drowning there when a skier or snowshoer attempts the ice bridge crossing.

  6. David Gibson says:

    Teresa,

    Here is where you comment:

    Opportunity for Public Comment:

    Comments on this project must be submitted in writing to the Contact Person no later than Sep 21, 2018.

    Contact:

    Marc S Migliore
    NYSDEC Region 5 Headquarters
    1115 St Rte 86
    Ray Brook, NY 12977
    (518)897-1234
    DEP.R5@dec.ny.gov

  7. Paul says:

    Did the DEC promise the towns a bridge when they asked them if they would approve the sale of the land to the state? That’s the issue and the mistake the rest of this is 5 years too late. The state always has this type of internal conflict with lots of projects. Even on things like where the DEC wants to build X for hikers or the like. Nobody seems to suggest we involve administrative law judges for those projects?

    The compelling thing here, assuming I am reading this right, is that there is another bridge they could use. Why waste funds on another one? Is it because a groomer would crush it or can’t get across?

  8. Larry Roth says:

    The important question to ask is: what does Andrew Cuomo want? And why?

  9. Justin Farrell says:

    The article fails to also mention that the Cedar River freezes up pretty solid there during most winters, and it was routinely crossed by numerous snowmobiles while the area was in private ownership, despite no bridge.

  10. Paul says:

    Folks should probably look at the entire permit application, along with the environmental review package for the project to help answer the question posed in the article title. Seems like a lot of review to determine compliance with the law for a rubber stamp. People who comment probably base their comments on this or that article they have read here or there. Given that their comments are more emotion or opinion than fact or science based. But I guess these folks working on the review could be getting some marching orders from Cumo? These days it’s a conspiracy theory if you don’t like the result.

  11. Pete says:

    You extreme environmentalists can’t be happy with what you got when the state purchased the Essex Chain Lakes tract. Namely, the complete elimination of logging, the removal of all private camps, closing of most roads to any motor vehicle. I have canoed the lakes and walked miles of roads. Most of the roads would make wonderful snowmobile trails with no environmental impact, and 50 miles of nearby trail would have provided a big economic benefit to the nearby towns. A 50 mile mountain bike system would have helped in the summer but many of the roads are even off limits to mountain bikes. Why? A few years ago, there were log trucks on them You got a lot of new “Wilderness” and the entire area protected from logging and development. You got full access to 19600 acres that you didn’t have for 100 years, with over 50 miles of roads to hike. Snowmobilers got basically one route through the area.They and the surrounding towns which depend primarily on snowmobiling for any kind of winter economy accepted the compromise but you are trying to go back on the deal. Remember, the purchase never would have happened without the approval of the towns. Access to the lakes and bulk of the tract from Indian Lake was part of the deal and that requires rebuilding the bridge.

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