After ruling, DEC releases updated tree-cutting policy
SARANAC LAKE — The state Department of Environmental Conservation announced the finalization of its new Forest Work Plan Policy on Sept. 6. This policy, also known as Commissioner’s Policy 78, replaces the DEC’s previous forest preserve tree-cutting policy and comes two years after the New York State Court of Appeals ruled the DEC’s proposed snowmobile trails unconstitutional, triggering the policy reconsideration.
The New York State Court of Appeals ruled in 2021 that the DEC’s planned construction of Class II trails — trails that serve mainly as connections between communities and practical travel routes for snowmobiles — would violate the state constitution. The court stated in its ruling that “the planned 27 miles of snowmobile trails may not be built without constitutional amendment,” citing a 1930 ruling that declared the construction of a bobsled run for the 1932 Olympic Winter Games in violation of Article 14, the “Forever Wild” clause in the state constitution.
This decision came after an eight-year-long legal battle. Protect the Adirondacks, a nonprofit organization, alleged in court that the trails violated Article 14 due to the extensive cutting of timber that would need to take place to build the trails. The group also alleged that the DEC’s standard definition of “timber” — trees three inches in diameter or larger at breast height (DBH) — was inaccurate and misleading. Counting seedlings and saplings, almost 25,000 trees would need to be cut to construct the trails, not the DEC’s estimated 6,000.
The court ruled 4-2 against the DEC’s plan.
After the legal defeat, the DEC began workshopping a new forest preserve policy, forming a Trail Stewardship Working Group in December 2021. The group included representatives from, among others, Protect the Adirondacks, the Adirondack Council and the Barkeater Trails Alliance. The APA also collaborated with the DEC and working group. The policy was released for public comment in January 2023 and adopted last week.
“The forest preserve work plan policy and the new template is really the first product of the (working group),” said Peter Bauer, executive director of Protect the Adirondacks and Trail Stewardship Working Group member.
CP-78 “establishes administrative procedures for assessing the impacts of construction and maintenance activities on the Forest Preserve and for drafting site-specific work plans,” according to a Sept. 6 statement by the DEC. A work plan outlines potential work or improvements on the forest preserve.
“If the state was going to do a project … on the forest preserve, they have to develop what’s called a work plan. Depending on how significant the project is, they include more information,” Bauer said.
Included in the new policy are standardized processes for forest preserve work plans, which are split into three categories: The construction of new structures or improvement, the expansion or modification of existing structures or improvements; and ordinary maintenance activities.
CP-78 posits three core questions for work plans, developed from the 2021 Court of Appeals ruling and Article 14:
1. Is the proposed cutting, removal or destruction of timber “material or substantial”?
2. Is the degree of alteration of the existing Forest Preserve terrain permissible?
3. Are the impacts of the proposed project on the existing wild state of the Forest Preserve permissible?
Another reform included in the new policy is increased transparency and space for public comments to the DEC. All work plan drafts will be publicly available on the DEC website and noticed in the Environmental Notice Bulletin for a period of public comment of at least 14 days. The final plans will all be publicly archived, as well. Previously, work plans could only be accessed through a FOIL request.
The new policy also requires not only a tally of all trees three inches DBH, but also all trees measuring one to three inches DBH. All trees three inches DBH and larger must be tallied by species and size class, while smaller trees are only required to be tallied.
The DEC cited blind spots and discrepancies in the old policy as reasons for the updated policy.
“The previous policy was from 1991, and did not fully capture the analysis land managers were routinely conducting when planning Forest Preserve stewardship projects,” DEC spokesperson Lori Severino said Sept. 13. “The new policy formalizes DEC’s assessment of construction and maintenance activities beyond just the identification of vegetation impacts to include a more holistic analysis of all potential impacts to the Forest Preserve, with an emphasis on identifying ways to avoid, minimize, and mitigate such impacts.”
“This is a DEC Commissioner’s Policy, but it does complement the existing coordination with APA as set forth in the DEC/APA Memorandum of Understanding requiring consultation and Adirondack Park State Land Master Plan conformance,” APA public information officer Keith McKeever said Sept. 13. “All proposed projects undertaken on the Forest Preserve must be in conformance with the guidelines and criteria of the ASLMP, and consistent with the adopted unit management plan for the area in question.”
Protect the Adirondacks posted a lengthy reaction to CP-78 on its website Sept. 11. The group was pleased by the three questions the policy incorporated, but criticized its omission of “three of the six Article 14 criteria set forth in the case law, which could lead to problems down the road.” The missing criteria, according to the group, are the prohibition of excessively wide trails, a directive to keep the impacts of projects as light as possible, and an acknowledgement of the forest preserve as primarily dedicated to the preservation of wilderness.
“It’s not as thorough as we would have liked, but it’s a good start,” Bauer said. “The department now does an Article 14 compliance analysis. That’s great. And they also have to provide their desired outcomes … and then there’s a series of impact assessments.
“We’re thankful that all of this stuff was codified and organized into a policy that sets a unified standard for management of the forest preserve, for the actual work that’s being done on the forest preserve. So that’s all positive steps.”