October 24, 2024

Megan Phillips, Deputy Director for Planning
NYS Adirondack Park Agency
P.O. Box 99
Ray Brook, NY 12977

Re. Proposed Adirondack Park State Land Master Plan (APSLMP) amendments

Dear Ms. Phillips,

We have serious concerns about the speed by which major amendments to the APSLMP have been authorized to proceed to public hearing and comment. The introduction of major APSLMP amendments, the briefest of discussion with Agency Members, and the vote to send them to hearing all took place during a single Agency meeting. That is an unduly hasty process resulting in negative consequences.

Rushed Process to Amend the SLMP: The State Land Master Plan stresses that “strong public involvement in the whole process of revision and review should be encouraged.” In addition to the legally required public hearings, “appropriate publicity and sufficient notice about proposed changes are also necessary to permit maximum public participation” (APSLMP, page 9). Prior to the September Agency Meeting agenda there appears to have been no publicity and no notice about proposed changes before the entire package was voted to proceed with public comment.

To our knowledge there were no stakeholder meetings or any meeting of the Agency’s State Land Committee where discussion could have taken place that would inform the public of coming major amendments, and where issues and concerns about any of the amendments underway could have improved the amendment proposals.

Amendments Weaken the Master Plan: Several amendments seriously weaken the Master Plan in direct violation of its unifying theme and paramount purpose (protection and preservation of the natural resources), and the 1979 Programmatic EIS for Amending the Master Plan. Prime examples of such weakening are the new definitions of Motor Vehicle and Other Power-Driven Mobility Device, and the Accessibility section.

As proposed the SLMP motor vehicle definition, which has long included all types of all-terrain vehicles (ATV), would now exclude “wheelchairs, or other power-drive mobility devices” (OPDMD). Although federal Americans with Disabilities Act (ADA) identifies all-terrain vehicles (ATV) and golf carts as one of many classes of OPDMD, Forest Preserve law and Part 196 of DEC regulations prohibit this class of OPDMD (ATV) from Wilderness and Wild Forest trails.

Public use of motor vehicles in Wilderness, Primitive, and Canoe areas is expressly prohibited by the Master Plan. Both the Master Plan and interrelated DEC regulations (Part 196) prohibit public use of motor vehicles such as ATVs on any Wild Forest trail. By excluding all classes of OPDMD from the SLMP Motor Vehicle definition, the proposed amendment injects massive public confusion and serious legal and constitutional conflicts.

Altering the motor vehicle definition in the SLMP would also violate the Final Programmatic EIS for Guidelines to Amend the Master Plan which states on page 30 that “guidelines should be designed to protect the character of Wilderness, Primitive, Canoe and Wild Forest areas. The very foundation of Wilderness is the guideline which prohibits motorized access by the public and severely restricts such access by the Department of Environmental Conservation. Alteration of this guideline to permit generalized use of motor vehicles or aircraft would destroy the character of Wilderness, a cornerstone of the Master Plan.”

There is no legal justification to weaken the Master Plan by excluding all classes of power-driven mobility devices (OPDMD) from the definition of Motor Vehicle, or by granting DEC complete discretion over where OPDMD can operate in the Forest Preserve. Nothing we can find in U.S. Justice rules to implement the ADA requires these APSLMP changes. In fact, U.S. Justice ADA rules provide five assessment factors which enable DEC to condition or restrict OPDMD from Wilderness and Wild Forest trails, and thus abide by current APSLMP definitions and guidelines, and DEC regulations.

Accessibility: Highly problematic is the new, poorly drafted Accessibility section, specifically this: “keeping with ADA Title II regulations on mobility devices (CFR § 35.137), wheelchairs are allowed on state lands anywhere that pedestrian access is permitted. The DEC is responsible for interpreting federal regulations and guidance to determine where the use of Other Power-Driven Mobility Devices (OPDMDs) may be appropriate.”

The first sentence is correct and sufficient. Wheelchairs are allowed on state lands anywhere that pedestrian access is permitted. The second sentence contradicts other parts of the SLMP and DEC regulations. 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 in 2021. DEC is legally and constitutionally constrained from exercising discretion to allow OPDMD to drive anywhere on the Forest Preserve. The second sentence must, therefore, be dropped to avoid obvious legal conflicts.

The only places that ATV and golf cart class of OPDMD should be authorized to travel would be Forest Preserve roads signed as open to motor vehicles, or roads open exclusively for persons with disabilities under Commissioner Policy 3 (CP-3). On trails, wheelchairs, powered or not, are clearly authorized. All classes of OPDMD are not.

The U.S. Department of Justice rules provide NYS DEC with five Assessment Factors which condition or restrict where OPDMD may be allowed and encourages DEC to issue a policy for OPDMD use. These assessment factors include the type, size, weight, dimensions, and speed of the device; safe operation of the OPDMD and safety requirements; and a substantial risk of serious harm to the environment or natural or cultural resources caused by use of OPDMD. Clearly, the nature of the OPDMD device, their safe operation on Forest Preserve, and serious harm to wilderness resources and conditions would all qualify as factors to restrict OPDMD in Wilderness, Primitive, Canoe and on Wild Forest trails. Our reading of U.S. Justice rules tells us that use of OPDMD on the Forest Preserve should be addressed through the existing DEC CP-3 program and through written DEC Policy on use of OPDMD, applying the relevant assessment factors, and not through weakening APSLMP amendments.

Unit Management Planning/Carrying Capacity: The new material about carrying capacity study in UMPs is awkward, poorly drafted, and misleading. In this draft, the reader gets the impression that the SLMP has substituted Visitor Use Management for Carrying Capacity, when in truth VUM steps and methods are merely the most contemporary, national and state adopted tools for understanding and applying carrying capacity analysis. The work of evaluating the carrying capacity of Forest Preserve, lands and waters, remains basic and essential to unit management planning as described within the APSLMP. Your proposed amendment language undermines and misconstrues this fundamental requirement.

It simply is not true that “carrying capacity has been a concept for determining how many people could use a given recreational setting before impacts are unacceptable.” This proposed language is outdated and discredited. Since the High Peaks UMP was adopted in 1999, it has been accepted by DEC and APA that “by focusing on determining how many visitors an area could accommodate, it was found that managers lost sight of basic wilderness goals and objectives…this changed the question ‘how many is too many’ to ‘how much change is acceptable.’ Viewed in this context, carrying capacity can be used to prescribe what kind of resource and social conditions are acceptable, compare them to on-the-ground conditions, and identify the management actions needed to maintain or restore the desired wilderness condition” (High Peaks Wilderness Unit Management Plan, page 106).
We urge APA-DEC to use the above clear description of carrying capacity analysis taken directly from the High Peaks UMP and added to all UMPs adopted since 1999.

If under UMP Development a new paragraph is needed about VUM, and we are not certain that it is, we suggest this taken from the Draft DEC-APA Guidance on Visitor Use Management (May 2021):

  • The unifying theme should serve to focus attention on two critical sets of characteristics: the natural resource conditions of our State lands and the visitor experiences that are desired and considered appropriately suited to each area’s land classification. Active management of both the setting for recreational use (natural and managerial) and the recreational use itself should have the primary goal of achieving and maintaining these desired characteristics. Visitor-use management – or “VUM” – is simply the name of a process designed by experienced professionals to help achieve this goal.”
  • Use of VUM is intended to satisfy what are the APSLMP’s most important directives regarding UMPs: that they should be based on assessments of the carrying capacities of each area’s resources, and they should prescribe management aimed at: 1) ensuring those carrying capacities are not exceeded; and, 2) rehabilitating any areas whose resources – both natural and experiential – are suffering degradation due to overuse.”

Wilderness – Motor Vehicles, proposed Guideline 7: This proposed new guideline baldly conflicts with the spirit and plain letter of other APSLMP guidelines. Its addition now can only be viewed as an effort by DEC, abetted by APA, to maneuver around fundamental restrictions on the administrative use of motor vehicles in Wilderness. It must be removed.

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 phase-out period will be evaluated on a case-by-case basis by the Agency. This work must occur during the off-peak seasons.”

DEC’s lack of capacity (or will) to remove non-conforming structures or improvements from Wilderness during the three-year period following classification was clearly anticipated fifty years ago by guideline 3. Guideline 3 allows the DEC Commissioner to authorize use of motorized equipment and aircraft, but not motor vehicles, to remove non-conforming structures from Wilderness at any time – including after the three-year phase-out period.

Proposed guideline 7, giving APA the authority to allow administrative motor vehicles on a discretionary basis, baldly contradicts the express purpose of guideline 3 to limit DEC to the use of motorized equipment and aircraft, but not motor vehicles. In fact, proposed guideline 7 which allows APA to evaluate DEC use of motor vehicles on a case-by-case basis is so open-ended that it winds up conflicting with guideline 2 wherein “administrative personnel will not use motor vehicles, motorized equipment or aircraft for day-to-day administration, maintenance or research.”

Again, new guideline 7 must be removed or it will pose serious legal conflicts with the existing APSLMP restrictions on use of motor vehicles by administrative personnel, and with the Final Programmatic EIS governing amendments to the APSLMP.

Wilderness – Structures and Improvements, Beaver Control Structures: beaver control structures, while useful in controlling water levels and preventing flooding without trapping and killing beaver colonies, require perpetual maintenance and repair. In general, the repeated incursions needed to install, maintain, and replace steel and other man-made equipment required as water levelers wherever beavers are causing issues make them inappropriate and non-conforming for areas managed as Wilderness. Beaver control structures are most definitely not subsets of what the APSLMP calls “wildlife management structures… essential to the preservation of wilderness wildlife values and resources.” Beaver control structures are deployed out of convenience to preserve man-made structures, infrastructure, and personal property, not public Wilderness.

The draft amendments should not approve of beaver control structures, meaning heavy steel structures and their perpetual maintenance and rehabilitation on trailheads, etc. as conforming with Wilderness, Primitive or Canoe area definition, guidelines, and standards.

Appropriate bridges made of natural materials and trail relocations are the correct and APSLMP-conforming approach to beaver management in Adirondack Wilderness, Primitive and Canoe.

As a way forward, beaver control structures could, if necessary, be added to the Boundary Structures and Improvements section of the APSLMP Wilderness guidelines so that beaver control structures would be considered solely for peripheral control in Wilderness within 500 feet of a public highway.

In Wild Forest, beaver control structures, as proposed to be added to that section’s Structures and Improvements, would be conforming to the existing Wild Forest definition and guidelines.

Climate Change: The new, proposed climate change section of UMP Development is a positive, but mostly hortatory addition to the APSLMP. However, the suggested list of management actions and alternatives to assess and plan for climate change vulnerabilities is incomplete as written.

Right-sizing bridges and culverts and sustainable trail construction, and green infrastructure and appropriate storm water management improvements can indeed help to mitigate onsite flooding at public facilities as well as protect water quality – as written.

Glaringly omitted from these chosen examples of managing the Forest Preserve through modifications of its environment is the avoidance of making material modifications in the Forest Preserve in the first place, for example:

  • By not designing and constructing certain roads, trails, or other improvements for snowmobiling, for example, DEC addresses the Climate Act by not incurring expense and resource damage all for trails lacking in snow cover due to climate change.
  • By not allowing public use of motor vehicles on slopes with highly erodible soils, DEC addresses the Climate Act by avoiding washouts exacerbated by intense rainfall events.
  • By not maintaining a dam in the Forest Preserve and by allowing some dams to be breached, DEC addresses the Climate Act by restoring waterbodies to their pre-industrial levels, and thereby also freeing up DEC operations and maintenance expense.

Water: Since the first APSLMP, 1972, water resources are identified “as critical to the integrity of the Park,” and “a genuine need exists to insure that the scale and intensity of water-oriented uses are consistent with uses of adjoining state and private lands and the general character of the Park.” To this end, “a comprehensive study of Adirondack lakes and ponds should be conducted by the DEC to determine each water body’s capacity to withstand various uses, particularly motorized uses and to maintain and enhance its biological, natural and aesthetic qualities.”

Since 2016 Members of the Agency have consistently and publicly urged the DEC to finally undertake what the SLMP has long called for, waterbody carrying capacity studies. In response, DEC verbally agrees, but has consistently failed to put recommendations into action – despite having a well-studied methodology to conduct such work in its possession since 2011 (See Forest Preserve Carrying Capacity of Waterbodies Study, Phase 1, Selecting Indicators for Monitoring Recreational Impacts).
Because pressures on Adirondack lakes and ponds are increasing every year, we had hoped that APA would explicitly direct DEC to undertake waterbody carrying capacity studies, appropriately defined and described, in the APSLMP section dealing with Unit Management Plan Development. The failure to do so in these draft amendments is glaring and a serious missed opportunity. We urge APA to incorporate this subject in this APSLMP amendment package.
Thank you.

Sincerely,

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

P.O. Box 9247
Niskayuna, NY 12309
www.adirondackwild.org
518-469-4081

Cc: Agency Members and Designees
Barbara Rice, Executive Director, APA
Sean Mahar, Acting Commissioner, DEC
Governor Kathy Hochul
Executive Chamber