November 9, 2017
Peter D’Luhosch
Conservation Easement Specialist
NYS Dept. of Environmental Conservation
6739 U.S. Highway 11
Potsdam, NY 13676
Re: Comments on the Kildare, Five Mile, and Raquette-Jordan Boreal Unit Management
Plan Amendments
Dear Mr. D’Luhosch:
Earthjustice and Adirondack Wild: Friends of the Forest Preserve (“Adirondack Wild”) jointly
submit these comments regarding the proposal by the New York State Department of
Environmental Conservation (“DEC” or “Department”) to amend the Unit Management Plan
(“UMP”) for the Raquette-Jordan Boreal Primitive Area (the “Boreal Primitive Area”)1 to allow
construction of a new 1.25-mile road for the purpose of providing increased motorized access to
the Boreal Primitive Area and adjacent conservation easement lands.
The proposed UMP amendment should be withdrawn for several reasons. First, the proposed
amendment would increase public motorized access to the Boreal Primitive Area and adjacent
conservation easement lands even though the Department has not conducted the baseline
motorized use studies that the UMP requires be completed prior to any proposal to increase
motorized access. The proposed amendment is therefore inconsistent with the commitments

1

DEC, Raquette Boreal Unit Management Plan (Dec. 2006).
1

 made by the Department in the UMP, which were explicitly recognized and relied upon by the
Adirondack Park Agency (“APA”) in issuing its December 14, 2006 Consistency Determination.
Second, the Department’s assessment pursuant to the State Environmental Quality Review Act
(“SEQRA”)2 of the potential environmental impacts of the proposed amendment is deficient.
The Department’s SEQRA analysis is limited to the “footprint” of the proposed new road itself,
and fails to address potential impacts to the Boreal Primitive Area and other ecologically
sensitive areas from the increase motorized access. The proposed amendment would increase
public motorized access to remote areas that possess unique and significant natural resources of
statewide significance, and that provide outstanding opportunities for solitude, yet the
Department has failed to assess the impacts that such increased access may have on those natural
resources or on the opportunities for solitude provided by those areas.
Third, the Department has failed to consider or analyze the impacts of the proposed amendment
and its resulting increase in motorized access on the long-term prospect of creating a Boreal
Wilderness Area, a recommendation of the Commission on the Adirondacks in the Twenty-First
Century and of others.
For all of these reasons, discussed in detail below, we urge the Department to withdraw the
proposed UMP amendment.
I.

The Boreal Primitive Area and Adjacent Lands Contain Natural Resources of
Statewide Significance

The Boreal Primitive Area and adjacent lands are home to unique, sensitive and rare ecosystems;
protected rivers; and endangered, threatened and rare plant and animal species. In its resolution
determining that the UMP for the Boreal Primitive Area was consistent with the Adirondack
Park State Land Master Plan, APA noted that the Primitive classification was based on the
presence of “biological resources of Statewide significance” as well as on “unique and
significant resource values for its sense of remoteness and outstanding opportunities for
solitude.”3
A. The UMP Identifies Numerous Unique and Outstanding Attributes
The outstanding natural resource and scenic attributes of the Boreal Primitive Area are explicitly
recognized in the UMP:


The portions of the Raquette, Jordan, and St. Regis rivers flowing through the Boreal
Primitive Area have been designated “Scenic” under the New York Wild, Scenic and
Recreational Rivers Systems Act.4 UMP at 17-18.

2

N.Y. Envtl. Conserv. Law (“ECL”), art. 8.
APA, Resolution Adopted by the Adirondack Park Agency With Respect to Raquette Boreal
Unit Management Plan, (Dec. 14, 2006) (“Consistency Determination”) at 2.
4
ECL art. 15, tit.27
3

2

 

“Much of the beautiful scenery of the Raquette Boreal Unit can be encountered along the
waterways. The 3,000[-]acre Carry Falls Reservoir is readily accessible by boat, offering
panoramic views of gently sloping adjacent hills . . . [T]he 15 mile stretch of the Raquette
River from Piercefield to Carry Falls is one of the premier routes in the state. The scenery
is spectacular along this route with virgin white pine and hemlocks along the riverside.
The Jordan River east of the Lassiter Main Haul Road provides a true boreal forest
experience as it meanders thru forests of balsam fir, tamarack and black spruce, as well as
a variety of wetlands, all more characteristic of northern Canadian boreal forests than the
northeast US.” Id. at 37.



“The wetlands of this unit possess great ecological, aesthetic, recreational and
educational value.” Id. at 18.



The New York Natural Heritage Program5 and the Master Habitat Data Bank identify
“eleven notable ecological communities and four rare or endangered animal species and
two rare plant species within the Raquette Boreal Unit.” Id. at 21



According to New York State Breeding Bird Atlas data,6 101 species of birds are
believed to breed within the Raquette Boreal Unit. Bald eagles, a threatened species have
been confirmed as nesting within the unit. Spruce grouse, an endangered species, are
found in the unit as well. Id. at 30.



Six endangered, threatened, species of special concern and other unique species are found
in the Unit. Id. at 33-34.



The Boreal Primitive Area includes all or portions of approximately 30% (9 of 29) of the
sites which are thought to still support the endangered spruce grouse in New York State.
Included among these nine sites are several sites that appear to be among the best
remaining sites for the species in the state. “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.” Id. at 37.



The spruce bog complexes in the Unit “also support populations of several other rare
boreal specialist bird species that, in New York State, are restricted to the Adirondacks,

5

N.Y. Natural Heritage Program, Raquette Boreal Forest, Rare Species & Significant Ecological
Communities (2002).
6
Andrle, Robert F. and Janet R. Carroll (eds.). The Atlas of Breeding Birds in New York State,
Cornell University Press. Ithaca and London. 1988.
3

 including palm warbler, gray jay, blackbacked woodpecker, boreal chickadee, yellowbellied flycatcher, and olive-sided flycatcher.” Id. at 37-38.


The Raquette River, which flows through the Boreal Primitive Area, “is one of just four
rivers in the state currently known to support the state Special Concern extra-striped
snaketail dragonfly.” Id. at 38.
B. The Proposed Boreal Wilderness Area

In 1988-89, Adirondack ecologist and planner George D. Davis called for the creation of a Low
Elevation Boreal Reserve in southern St. Lawrence and western Franklin Counties.7 The entire
area covered by the proposed amendment was included in that proposal. Since the low elevation
boreal biome (an extensive area of spruce/fir forests and sphagnum bogs) was not then found in
any units of the Adirondack Forest Preserve wilderness system, Davis also recommended that a
portion of the proposed Adirondack Boreal Reserve be designated a Boreal Wilderness area.
The recommendation to create a Boreal Wilderness Area was later adopted by the Commission
on the Adirondack Park in the 21st Century.8
II.

The UMP Recognized that Increased Motorized Access Could Threaten Natural
Resources and Therefore Required DEC to Collect Baseline Data Before Allowing
Such Access

The UMP noted that, at the time of its preparation, “[c]urrent use levels on the unit [were]
relatively low, likely due to the lack of public motor vehicle access to the periphery of the unit.”
UMP at 43. Nevertheless, the UMP also acknowledged that illegal use of all-terrain vehicles
(“ATVs”) was an ongoing problem in the unit, stating that “[i]mpacts from illegal motor vehicle
use are evident on most trails throughout the unit.” Id. at 58.
The UMP then explicitly acknowledged the need to assess potential threats to the unique
resource attributes of the Boreal Primitive Area posed by increased motorized access:
The New York Natural Heritage Program . . . states the three most significant
threats to the long-term viability of the natural communities within the Raquette
Boreal Unit are: logging of natural areas, alterations to the hydrology of wetlands
and rivers and the continued decline of spruce grouse populations. The report did
not identify recreational use, either motorized or non-motorized, as a threat to
7

Davis, George D., 2020 Vision, Completing the Adirondack Wilderness System, Vol. 2, The
Adirondack Council (1990).
8

The Commission on the Adirondacks in the Twenty-First Century, The Adirondack Park in the
Twenty First Century, (April 1990) at 54-55.

4

 these communities. However, a thorough assessment of potential impacts
associated with these activities would be required to ensure the protection of
these resources, prior to any proposed actions to allow them to occur.
Id. at 27 (emphasis added).
The UMP went on to warn that “[t]he Raquette Boreal Unit . . . cannot withstand ever-increasing,
unlimited visitor use without suffering the eventual loss of its essential, natural character.” Id. at
54. In particular, the UMP identified the following potential adverse impacts to the Boreal
Primitive Area from motorized uses:


Pollution of surface waters related to road and trail maintenance activities and motorized
use;



Negative effects on fish and wildlife populations related to road and trail maintenance
activities and motorized use;



The removal of vegetation related to road and trail maintenance activities and motorized
use;



An increase in the need for law enforcement, fire protection, and search and rescue
services;



An increase in the visual impacts related to road and trail improvements and motorized
use;



The creation of safety hazards;



An increase in noise levels in areas surrounding open roads, trails and related facilities;
and



Effects on significant plant and animal communities.

Id. at 105-07.
In order to ensure that existing levels of use and possible increased use levels did not jeopardize
the Unit’s resources, the UMP set forth specific data-gathering and planning commitments,
including:


Develop Limits of Acceptable Change (“LAC”) indicators and standards for vegetation in
riparian areas near lakes and streams (Id. at 80);



Develop LAC indicators and standards for soil erosion (Id. at 81);
5

 

Monitor and afford extra protection, where warranted, to species which are Endangered,
Threatened or of Special Concern that are currently using the Raquette Boreal Unit (Id. at
83);



Conduct biological and chemistry surveys of all ponds within the unit (Id. at 84);



Monitor use of roads utilized under reserved rights of others (Id. at 88); and



Develop uniform method of collecting use data across the unit (Id. at 105).

The importance of the UMP’s directive that baseline data on motorized access be collected prior
to any consideration of providing increased public motor vehicle access to the Boreal Primitive
Area and associated conservation easement lands was underscored in the APA’s Consistency
Determination:
[T]he Plan calls for the monitoring of public use to assess changes in use levels,
monitoring of motor vehicle use of roads within the unit which are utilized under
reserved rights, developing a Limits of Acceptable Change system to monitor and
address environmental impacts related to the existence of improvements and
facilities in the Unit and prevent illegal motor vehicle use.
Consistency Determination at 2.
To date, the Department has failed to undertake any of the UMP commitments regarding
monitoring, collection of baseline data, development of LAC, or assessment of environmental
impacts, or control of illegal motor vehicle use.
III.

The Proposed Amendment Cannot Lawfully Move Forward Absent the Baseline
Studies Required by the UMP

DEC has repeatedly acknowledged that the purpose of the proposed UMP amendment is to
provide, for the first time, public motorized access to remote areas in the Boreal Primitive Area
and associated conservation easement lands. See, e.g., DEC press release, “DEC Constructing
Road Between Two Conservation Easements to Open Remote Area to Public;”9 Proposed UMP
Amendment at 3 (“This amendment . . . will provide public motor vehicle access for the first
time to thousands of acres of conservation easement and Forest Preserve lands.”). However,
contrary to the UMP’s requirement that DEC conduct studies and collect vital baseline data prior
to proposing any increase in public motorized access, the Department is proposing to open up

9

Available at http://www.dec.ny.gov/press/111365.html (Sept. 12, 2017);
6

 previously inaccessible areas to public motorized use without having first completed any of the
prerequisite studies. DEC’s apparent decision to proceed with the amendment in the absence of
critical data collection required by the UMP constitutes a material change in planning for the
Unit. In the absence of an amendment to the UMP dispensing with the need for the previously
required studies, the proposed amendment constitutes a material modification that has not gone
through the requisite public process and therefore violates both the UMP and the APSLMP. See
APSLMP at 12 (“Any material modification in adopted [UMPs] will be made following the
procedure for original unit plan preparation.”); see also N.Y. Exec. Law § 816(1) (specifying that
“the master plan for management of state lands and the individual management plans shall guide
the development and management of state lands in the Adirondack park.” (emphasis added)).
Thus, the proposed amendment cannot move forward in the absence of the prerequisite studies
without violating both the UMP and the APSLMP.
IV.

The Department’s SEQRA Analysis is Deficient

The Department’s SEQRA analysis is deficient because (1) the Environmental Assessment Form
(“EAF”) fails to accurately describe the proposed action and the resources that may be affected
by the action; and (2) both the EAF and the Negative Declaration fail to identify and evaluate
numerous potentially significant environmental impacts of the action.
A. The EAF Contains Significant Errors and Omissions
Despite the fact that, as noted above, DEC has acknowledged that the proposed connector road
will, for the first time, provide public motorized access to remote areas of the Boreal Primitive
Area and adjacent conservation easement lands, the EAF limits its description of the proposed
action, the affected resources, and potential impacts solely to the “footprint” of the connector
road itself. In doing so, the EAF fails to fully and accurately describe the action, the affected
resources, or potential impacts as required by SEQRA. See 6 NYCRR § 617.2(m) (requiring that
an EAF “contain enough information to describe the proposed action, its location, its purpose
and its potential impacts on the environment.”). In order to comply with SEQRA, the EAF
should have identified and evaluated the potential impacts of the action on the larger
environment, specifically the impacts from opening up more than 17 miles of road (the Lassiter
Haul Road) to public motorized access for the first time in the Unit’s history.
It is important to recognize that the Lassiter Haul Road and its spurs extend to the border of
Forest Preserve lands, classified as Primitive and Wild Forest. In fact, the proposed amendment
acknowledges that “[i]n addition to providing access to and through the Kildare CE lands, these
roads also provide access to the adjacent Raquette River Wild Forest and Raquette-Jordan Boreal
Primitive Area.” Proposed Amendment at 10. Despite the fact that the amendment
acknowledges that the proposed action will, for the first time, provide public motorized access to
previously remote areas, the EAF fails to identify or describe the natural resources that exist in
those potentially affected areas, including the Scenic Raquette, Jordan, and St. Regis rivers; the
numerous high value wetlands in the Unit; the eleven notable ecological communities identified
7

 by the New York Natural Heritage Program; and the six endangered, threatened or special
concern species in the Unit.
For example, DEC’s Spruce Grouse Recovery Plan10 shows historic spruce grouse habitat
extending 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 1.25mile 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 one or two miles of occupied spruce
grouse habitat. However, this fact is not acknowledged or its potential impacts assessed in the
Department’s SEQRA analysis.
Compounding these significant omissions is the Department’s erroneous entries in the EAF
concerning potential impacts. For example, in Part 3 of the EAF, DEC checked “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 known
eleven ecologically significant communities, and the known mapped megawetlands.
B. The EAF and Negative Declaration Fail to Address Numerous Potentially
Significant Impacts
The UMP 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.
UMP at 105-07 (emphasis added).
This commitment is reiterated elsewhere in the UMP:

10

DEC, Recovery Plan for New York State Populations of the Spruce Grouse (Falcipennis
canadensis) (Dec. 2012).
8

 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.
Id. at 89 (emphasis added).
DEC’s SEQRA analysis fails to comply with the UMP’s directive that the Department assess the
potential impacts of increased public motorized use on sensitive ecological resources and species
in the Unit.11 Indeed, as noted above, the UMP provided a road map for conducting such an
assessment by specifically identifying the potential impacts of increased motor vehicle activity,
such as pollution of surface waters, negative effects on fish and wildlife, vegetation removal, and
visual and noise impacts. Id. at 105-07. The 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.
As pointed out in the comments on the proposed amendment submitted by Dr. Michale Glennon
of the Wildlife Conservation Society,12 lowland boreal forests are home to some of the rarest bird
species in New York State. Dr. Glennon also states that roads, increased vehicular traffic and
increased human presence can have significant adverse impacts on sensitive bird species.
Neither the EAF nor the Negative Declaration mention or assess these potential impacts.
In any event, DEC cannot currently conduct an adequate assessment of potential impacts
associated with increased public motorized access because it has failed to collect the baseline
data on motorized uses and related impacts as required by the UMP. As discussed above, the
administrative record is clear that DEC was obligated under the UMP to complete an array of
studies and data collection prior to any proposal to increased public motorized access. The
record is also unequivocally clear that DEC never completed the required studies and data
collection. In the absence of the recreational impact studies and monitoring promised under the
2006 UMP, the DEC cannot possibly know whether and to what extent existing, limited motor
vehicle and other recreational uses are currently impacting the high value resources in the Unit;
what changes in uses and their impacts may have occurred since adoption of the UMP in 2006;
or how the increase in public motorized access resulting from the proposed amendment might
cause adverse impacts to the broad array of sensitive ecological resources in the Unit.

11

DEC’s failure to assess these impacts is also inconsistent with the SEQRA regulations, which
require an agency to consider “reasonably related long-term, short-term, direct, indirect and
cumulative impacts . . . .” 6 NYCRR § 617.7(c)(2).
12
Ltr. from Michale Glennon, Wildlife Conservation Society, to Peter D’Luhosch, DEC (Nov. 6,
2017).
9

 V.

DEC Has Failed to Assess Impacts of the Proposed Amendment on Future
Classification of a Boreal Wilderness Area

As noted above, the lands affected by the proposed amendment have previously been identified
as potential future components of a new Boreal Wilderness Area. Neither the proposed
amendment, the EAF, nor the Negative Declaration recognize this fact. Nor do any of these
documents analyze the effect of the proposed amendment on eventual re-classification of the
Boreal Primitive Area as wilderness, nor on creation of a new Boreal Wilderness Area
encompassing the current conservation easement lands. See APSLMP at 8 (prior to classification
. . . lands acquired by [DEC] . . . will be administered on an interim basis in a manner consistent
with the character of the land and its capacity to withstand use and which will not foreclose
options for eventual classification.” (emphasis added).

VI.

Conclusion

For the reasons set forth above, Earthjustice and Adirondack Wild respectfully request that the
Department withdraw the proposed amendment.
Thank you for the opportunity to submit these comments.
Sincerely,

Christopher Amato, Staff Attorney
Earthjustice Northeast Office

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

Dan Plumley
Dan Plumley, Partner
Adirondack Wild: Friends of the Forest Preserve
Cc:

Judy Drabicki, NYS DEC Regional Director, Reg. 6
Fred Munk, NYS DEC Natural Resource Supervisor, Reg. 6
Randall Young, NYS DEC Regional Attorney, Reg. 6
Dave Smith, Senior Forester, Reg. 6
Rob Davies, Director, NYS DEC Div. of Lands and Forests
Basil Seggos, Commissioner, NYS DEC

10

 Kathy Moser, Deputy Commissioner for Natural Resources, NYS DEC
Kathleen Regan, NYS APA
Walter Linck, NYS APA
Sherman Craig, NYS APA
Terry Martino, NYS APA

Earthjustice Northeast Office
48 Wall Street, 19th Floor
New York, NY 10005
T: 212-845-7390 (direct)
F: 212-918-1556
earthjustice.org
Adirondack Wild: Friends of the Forest Preserve
P.O. Box 9247
Niskayuna, NY 12309
T: 518-469-4081
adirondackwild.org

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