Ken Lynch, Chair
State Land Committee
NYS Adirondack Park Agency
Box 99
Ray Brook, NY 12977

Re. Adirondack Park State Land Master Plan (“Master Plan”) proposed amendments

Dear Mr. Lynch,

First, we thank the Agency for finally bringing the matter of substantive draft amendments to a committee discussion and deliberation this week. The highly controversial staff proposals of last fall should have gone through your committee before submitting them to public comment. We appreciate that committee deliberation is happening now.

Accessibility: Second, we appreciate the Agency’s staff recommendation to modify the Accessibility amendments in several important ways. By removing the Other Power-Driven Mobility Device definition, and the OPDMD exclusion from the Motor Vehicle definition, you have lifted a significant threat to the Forest Preserve, especially its Wilderness, Primitive, and Canoe classifications.
By excluding only wheelchairs from the Motor Vehicle definition and, in Response to Public Comment, listing Title II accessibility assessment factors and a DEC OPDMD statewide policy intent, still a work in progress, APA staff help to bridge wilderness and accessibility interests. Thank you.

The Agency’s September draft amendments seemed to pit those interests against each other. That continues to be wrong. Public land accessibility managers have testified that the vast majority of people who have disabilities are not seeking to expand motorized use to make access to Wilderness areas easier. Wilderness is not about what is easy. Wilderness is about preserving, enhancing, and restoring natural conditions and solitude or a primitive and unconfined type of recreation, as defined in the Master Plan. Preserving the challenge and opportunity for people of all abilities to experience those Wilderness outcomes is one of APA’s important planning responsibilities.

Non-motorized universal access to the Forest Preserve: Therefore, in the Unit Management Plan Development section of the APSLMP, the Agency should go further than it does – “the identification of management actions to improve access to and enjoyment of the unit’s lands and waters by persons with disabilities “ – to include new opportunities and partnerships resulting in safe programs affording non-motorized access for persons of all abilities to all Forest Preserve classifications.

ADA Explainer and Response to Public Comment: This brings us to the Agency’s ADA Explainer and Response to Public Comments. We do not believe these comprehensively address environmental impacts raised by Public Comments, as SEQRA requires. The ADA requires that each service, program and activity offered by state agencies be made accessible to and usable by persons with disabilities, unless doing so would result in a fundamental alteration of the nature of the service, program or activity or an undue financial and administrative burden.

How the Agency describes fundamental alterations of the program, service, or activity is, therefore, particularly important and in the Response to Public Comment APA is deficient. Use of ATVs on Wild Forest or Wilderness trails would fundamentally alter the Forest Preserve, the nature of DEC’s program for the Forest Preserve, and the Forest Preserve’s constitutional protection upheld by our Court of Appeals. Many public comments focused on the APSLMP explicit prohibition of public motorized use in Wilderness areas of the Forest Preserve. The comments correctly affirm that allowing OPDMD as defined in Wilderness violates the APSLMP Wilderness definition and fundamental guidelines of management and use. To comply with SEQRA, the APA should acknowledge and affirm how indiscriminate use of all classes of OPDMD on Forest Preserve trails and resources would fundamentally alter the nature of the Forest Preserve.

APA Responsibility for Wilderness resource protection: In Response to Public Comment, APA is strangely silent about its fundamental responsibility for Wilderness resource protection and the impacts on Wilderness from any uses of motor vehicles. Instead the APA responds to the concern about Wilderness protection with this: “all classes of OPDMD shall be permitted unless it can be shown that a class of device cannot be safely used.”

Public safety involving use of OPDMD, while very important to the drafting of OPDMD statewide policy, is irrelevant to the APSLMP Wilderness program and the environmental impacts from use of motor vehicles including OPDMD on Wilderness resources. Instead, the Wilderness program and primary guideline is, to quote the APSLMP, “to achieve and perpetuate a natural plant and animal community where man’s influence is not apparent.” Because prohibiting motor vehicles in Wilderness is central to preserving and perpetuating a natural community where human influence is not apparent, APA should include and explain impacts to Wilderness in Response to Comments.

In another response to comment, APA states that “here, the program generally being offered is public outdoor recreation within the Adirondack Park Forest Preserve.” While public outdoor recreation is an important portion of the Forest Preserve program, it is not the full extent of it. The full program, which access by all OPDMD in all State Land classifications would fundamentally alter, is founded upon Article XIV, Section 1, NYS Constitution, in the APSLMP Wilderness definition and guidelines, in the Generic Environmental Impact Statement controlling amendments to the APSLMP, and in the enforceable provisions of Part 196 of DEC’s regulations.

Substantial Risk of Serious Harm: The Response to Public Comment also states that “permitting an OPDMD in federal wilderness therefore poses a conflict with federal land management laws and regulations… However, the same regulatory ‘exemption’ does not apply to state wilderness areas.”

While it is true that federal regulations do not specifically exempt state wilderness areas, it is also true that the ADA itself provides NYS with opportunity to modify or deny forms of motorized accessibility that result in a fundamental alteration of the state’s program. Motorized uses in Wilderness, and ATV use on trails in Wild Forest would fundamentally alter the state’s program. We have been told that DEC OPDMD permits have not been issued in Wilderness areas for this reason. In Response to Comment, APA should confirm this.

Also, ADA regulations include the accessibility factors where OPDMD exemptions may be considered include “a substantial risk of serious harm to the environment or natural or cultural resources caused by use of OPDMD.” Given the SLMP, ECL, and DEC regulations, operating OPDMD such as golf carts and ATVs in Wilderness would constitute a substantial risk of serious harm to the environment and natural and cultural resources. The Response to Public Comment should explicitly include harm to Wilderness by use of motor vehicles as one of the factors posing a substantial risk of serious harm to the environment, natural and cultural resources. Without Responses properly applying the ADA and its regulations to the Forest Preserve, APA is not considering all relevant environmental impacts in the decisional record of APSLMP amendments.

Climate Change: We thank the Agency for its Response to Public Comment in strengthening this section, properly acknowledging the great importance of the Forest Preserve in climate mitigation, community resilience, and habitat connectivity.

Wilderness Guidelines: The proposed new guideline 7 states that “Irrespective of the above or any other guidelines in this master plan, use of motor vehicles by administrative personnel to remove non-conforming structures or improvements after the (three year) phase-out period will be evaluated on a case-by-case basis by the Agency. This work must occur during the off-peak seasons.”

Allowing DEC administrative motor vehicles on a case by case, open-ended basis contradicts other guidelines limiting DEC to the use of motorized equipment and aircraft but not motor vehicles to remove non-conforming uses. New guideline 7 should be revised to be more conditional in Agency evaluation of requests to use motor vehicles after the three-year phase out of non-conforming structures.

UMP Development: The amendments eliminate current language that all UMPs shall be completed by the next date for major amendments to the Master Plan. Eliminating deadlines for UMP completion ignores the problem and challenge: increasing DEC’s staff capacity to, in consultation with APA, complete the remaining UMP drafts for large Wild Forest units like Wilcox Lake, as well as the Whitney Wilderness, and others. A deadline for completing UMPs should remain in the Master Plan. We propose a reasonable five-year deadline: the close of the year 2030.

Thank you for considering our comments.

Sincerely,

David Gibson, Managing Partner
Adirondack Wild: Friends of the Forest Preserve

Adirondackwild.org
P.O. Box 9247, Niskayuna, NYI 12309
518-469-4081
[email protected]

cc: Amanda Lefton, DEC Commissioner
Josh Clague, DEC Forest Preserve Coordinator
Agency Members and Designees
Agency Staff