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FIELD NOTES

DEC Evaded Review of Bridge Over Scenic River
By Dave Gibson, Managing Partner Adirondack Wild

A body of water surrounded by trees  Description automatically generated
Bridge location on the Cedar River. Photo © Dave Gibson

New York State’s expedient evasion of its own State Environmental Quality Review Act (SEQR), has no better recent example than the Cedar RiverSnowmobile Bridge. The new bridge is being built north of Indian Lake, six miles inside the Adirondack Forest Preserve across a river designated by the State as Scenic.

A Supreme Court just rubber-stamped DEC’s actions in a ruling against Adirondack Wild and Protect the Adirondacks. There is plenty to say about how the Court’s decision (and DEC’s self-issuing Permit and Variance) sets a negative precedent for protection of Scenic Rivers under the State’s Wild, Scenic and Recreational Rivers Act, but for the present let’s address the SEQR evasion.

The State Environmental Quality Review Act (SEQR) requires any State or local agency that undertakes, funds, or approves a project to evaluate the actual or potential environmental impacts of the project. SEQRA clearly sets forth the State’s policy that adverse environmental impacts be fully considered and either minimized or avoided.

The law states that “agencies shall use all practicable means to realize the policies and goals set forth and shall act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process” (Environmental Conservation Law, ECL 8-0109).

The law further states that an agency must identify all areas of relevant environmental concern with respect to the project, take a hard look at them, and provide a reasoned elaboration for its determination as to whether the action may have a significant adverse impact on the environment. The agency must require preparation of an Environmental Impact Statement (EIS) if the proposed action may have any significant environmental impacts.

In the matter of the Cedar River Bridge, DEC considered its generic Environmental Impact Statement for the entire 19,000-acre Essex Chain of Lakes Complex Unit Management Plan adequate environmental review of the 140-ft long, 12 ft. wide steel bridge over the Cedar River.

“All areas of relevant environmental concern” (citing SEQR) were certainly never identified at the bridge site. According to DEC’s bridge permit application, construction of the new snowmobile roadway and bridge will require the cutting of over 100 trees and operation of heavy machinery, including trucks, excavators, and cranes, in the protected river corridor and along the banks of the Cedar River.  Lots of cement must be brought to the site to construct the abutments. Air and noise pollution will be created by heavy machinery and construction vehicles, and frequent use by snowmobiles. Then, there are the visual and aesthetic issues by introducing such a large bridge, road and frequent motorized use into this Wild Forest corridor adjacent to both Primitive and Wilderness areas.

A picture containing outdoor, sky, ground, building  Description automatically generated
The type of steel truss snowmobile bridge DEC plans to build across the Cedar River, from DEC’s Bridge Permit Application. Photo © Dave Gibson

No site specific Environmental Impact Statement was required for any of this activity, DEC told the Court, because the generic EIS for the entire Essex Chain UMP already sufficed for that purpose. However, as the plaintiffs pointed out to the Court, the Actual and Potential Environmental Impacts and Proposed Mitigation Measures section of the 2016 Essex Chain UMP never mentioned the Cedar River bridge. Not even once.

In the spring of 2016, DEC issued its required SEQR Findings for the Essex Chain of Lakes UMP, which included a statement that construction of the bridge “may result in significant adverse environmental impacts” but these were never fully identified and were never evaluated at all, as SEQR requires.
DEC affidavits to the Court attempting to show that they had been evaluated included statements that alternative bridge locations on the Cedar River had been assessed, and the preferred alternative explained. That is true. Alternatives analysis is part of SEQR requirements, but just a part. DEC Findings admitted that the bridge construction “may result in significant adverse environmental impacts,” so where were they described? They were not. The generic EIS failed to include the required, site specific “hard look” at the Cedar River project location required by SEQR.

I think the public assumes that a massive new construction like this anywhere in the Adirondack Park, whether sponsored by the State, local government or by a private entity, would have the benefit of site-specific environmental impact analysis. What the State of New York may be able to get away with is not an option for a private developer. That’s called a double standard.

Executive Law 150 originally signed by Governor Mario M. Cuomo in 1992, carried on by succeeding governors, was created to try to avoid a double standard in the Park. It seeks to assure the public that “new land use and development by State agencies within the Adirondack Park undergo the same level of Adirondack Park Agency review as is demanded of private developers.” That means that “any construction or other activity which materially changes the use or appearance of land or a structure, or the intensity of use of the land or a structure” must be, subject to notice from the APA, consistent with the Adirondack Park Land Use and Development Plan and not have an undue adverse impact upon the resources of the Park.

Unfortunately, in this instance APA had already sanctioned the Cedar River snowmobile bridge. APA had determined in late 2015 that the DEC’s Essex Chain of Lakes UMP was compliant with the Adirondack Park State Land Master Plan. That doesn’t mean that the Cedar River bridge had received the same site-specific scrutiny as a similar bridge on private land. Irrespective of Executive Order 150’s lofty objective, the Park double standard is truly baked in.

For example, in 1992 the private Finch, Pruyn and Company wanted to construct a steel bridge of similar length across the Hudson River for its forestry operation. At that time, both banks of the Hudson at the river’s “Stillwater” were privately owned (they are now part of the Forest Preserve). The Hudson River was then and now a designated Scenic River, just as the Cedar River is. The Adirondack Park Agency took jurisdiction of the project application in 1991 and the next year evaluated Finch, Pruyn’s project (APA Permit 91-200) requiring a project site description, details about wetlands and vegetation on the shores, impact analysis, including the potential impact of spilling concrete into the river, conclusions of law detailing how the project as described could be lawfully built, and specific conditions of the permit including how concrete was to be delivered to the abutment site in the middle of the river to minimize potential impacts.

At the time I considered APA’s review of the Hudson River Bridge impacts to be insufficient, but at least APA did more to comply with SEQR on a private bridge project than DEC did for this new similar bridge project across public, “forever wild” Forest Preserve.

One of those potential impacts which SEQR says must be considered is visual assessment. To help the agency comply with SEQR, DEC created its own Visual Impacts Policy in 2000. It requires DEC to assemble an inventory of aesthetic resources at a project location; conduct a visual impact assessment; determine the significance of any visual impact; and identify measures to avoid, mitigate or offset aesthetic impacts.

In the Cedar River case, Adirondack Wild and Protect retained an expert in visual resource assessment, Dr. Richard Smardon of the State College of Environmental Science and Forestry in Syracuse. Dr. Smardon had helped DEC come up with its Visual Impacts policy two decades before and his expertise is regularly sought because he is one of the country’s leading authorities in the field of visual resource assessment.

Dr. Smardon considered DEC’s claim that it had undertaken visual resource impact assessment of the Cedar River Bridge in the Essex Chain UMP and generic EIS. He reviewed the DEC Essex Chain UMP and could find no such visual impact assessment. In other words, the DEC was failing to follow its own Visual Impacts policy on river designated Scenic.

Dr. Smardon advised the Court that “it is my opinion that the bridge will have an adverse visual impact on the scenic and aesthetic attributes of the Cedar River and its protected river area. During bridge construction there will be motorized construction equipment generating noise and comprising a significant visual intrusion into the Scenic River environment and surrounding lands…the physical location of the bridge will introduce a large man-made structure constructed of non-natural materials introducing horizontal and vertical incompatible elements within a natural river setting.”

“Assuming that most recreational users are there to enjoy the remote and wild beauty of the Cedar River and adjoining lands, the bridge will be a major structural intrusion with steel and concrete abutments within a natural stream corridor that is otherwise free of man-made structures…Because of its size the bridge will be visible from a considerable distance above and below the bridge from the river and river shoreline. The bridge will have a significant visual impact because of the massive concrete abutments…and the strong horizontal elements of the bridge deck and railings, all of which are intrusive in the current natural context of the river and its adjoining lands.” Those adjoining lands are all Forest Preserve, variously classified Wild Forest, Primitive and Wilderness.

In this instance, DEC sidestepped its SEQR responsibilities because it felt political pressure from the administration of Governor Andrew Cuomo to build the motorized bridge quickly. A Supreme Court deferred to DEC, which is too commonplace. Yet DEC is the sponsor of the SEQR Handbook used by hundreds of local government boards who receive interpretation and guidance on SEQR from DEC.
DEC sets their example. DEC sets their standard for how to do SEQR properly, how to do it right, how do it consistently well. DEC just set a terrible example for others to follow and should be embarrassed by its slipshod SEQR performance for a massive construction project across a Scenic River deep inside the Adirondack Forest Preserve. The Court should have called them on it.


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2019


12/26/19 DEC Evaded Review of Bridge Over Scenic River read more >
11/24/19 95% Protected Open Space? APA Knows Better read more >
11/10/19 State Forest Preserve Use Plans Ignore Climate Change read more >
10/06/19 Time To Reconsider An Old Idea, A High Peaks Permit System read more >
09/12/19 A Living, Growing Memorial to Brother Yusuf read more >
08/26/19 The Roots of the Conflict Over Snowmobile Connectors read more >
07/29/19 Forever Wild, ORDA and Adirondack Legal History read more >
07/08/19 On APA Appointments; Role of Statewide Interests read more >
06/10/19 Did Her Independence Sink APA Acting Chair Feldman? read more >
04/28/19 In 1969, Citizens Saved the Upper Hudson from Destruction read more >
04/09/19 Making Conservation Design The Norm, Not The Exception read more >
03/19/19 Adirondack Wild and Sierra Club Seek Sunset for Mineral Sampling in Wilderness Lot 8 read more >
03/07/19 E-Bikes Are Not For The Forest Preserve
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02/21/19 New York’s Highest Court Accepts Brief in Defense of Wild Rivers read more >
02/11/19 Commission on the Adirondacks in the 21st Century: A Status Report read more >
01/12/19 Becoming Rooted Thanks to People like Bob read more >
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