New Precedent is Praised By Chairman Curt Stiles
APA Classifies First Water Body, Lows Lake Now Mainly "Wilderness"
Lakes Do Not Have to be Surrounded by State-owned Land to be Classified
By Carol W. LaGrasse
The Adirondack Park Agency asserted a new power at the September board of commissioners meeting in Ray Brook, namely to classify water bodies. Expanding its joint statutory power with the Department of Environmental Conservation to classify and manage lands within the Adirondack Forest Preserve, the agency declared most of Lows Lake "wilderness," and the rest "primitive," which is considered a pre-wilderness category.
In its six to four vote over the classification of Lows Lake and certain State Forest Preserve lands in the town of Long Lake, the agency also decided that shores of lakes do not have to be entirely owned by the State of New York for the lake itself to be classified.
Only one of the four "in-park" commissioners, namely Chairman Curtis Stiles, who was formerly a member of the board of directors of the Adirondack Council, voted to classify the waters of the lake. Mr. Stiles was joined by the two commissioners present who were drawn from outside the Blue Line, as the bounds of the Adirondack Park are known, and the three representatives of state agencies, the DEC and the Departments of State and Economic Development.
The debate on September 10 over the wilderness classification of much of Lows Lake displayed the opposing philosophies of the two sides of the vote.
After Richard Weber, the assistant planning director, presented the staff recommendations for the future of Lows Lake and the vicinity, debate about the heart of the issue, the precedent being set by designation of the waters and bed of Lows Lake as wilderness, was immediately joined. Opposition to the designation on that basis was quickly raised by Chestertown Supervisor Frederick R. Monroe, the non-voting representative from the Adirondack Park Local Government Review Board, and by Commissioner William Thomas of North Creek.
Mr. Monroe asked why the agency would choose to do something that has never been done before, when the management is already set. "Motorized access, float planes will not be changed. So why classify the base of the lake?" he asked, opening a lengthy discussion about the precedent issue even though Chairman Stiles slapped back: "Anybody else with a factual question?"
Thereupon Commissioner Leilani Ulrich asked about other similar situations and Mr. Weber noted the similarity with Ampersand Lake, with a large inholding, although the waters of this lake was not designated.
As the discussion continued, Mr. Thomas said, "You have a lot of reasons why you want to do it, even though it will set a precedent," a remark caught by the Adirondack Park Agency Reporter, which also recorded Mr. Weber's response:
"I can't deny it hasn't been done before. It would be a precedent in that sense but the unique situation would make it very difficult to consider in other locations without a similar fact pattern."
The discussion ranged about a variety of aspects of the Lows Lake classification, such as its being "counterintuitive," according to Ms. Ulrich. "It doesn't make sense," she said, because the motorized use of the waters of the lake by inholders will still be there.
Comments went around the commissioners' table and Mr. Stiles's presence suddenly dominated the room. He jumped into the long discussion about the lake's wilderness classification by making a little speech extolling the "broader, high road," and "the whole notion of wilderness."
"It is by design. It is valued over the long term," he said. "If you don't start, you never get there."
"The thing that troubles me about this whole discussion is that if you don't set a precedent, you won't move forward," Mr. Stiles said, expressing the heart of his argument.
During the rest of the discussion, which engaged the other commissioners at length, also, the chairman's comment was met at the far end of the table by the Review Board's director, Mr. Monroe. A statutory agency representing the county governments within the Blue Line, the Review Board is allowed to have its director sit with the APA board of commissioners.
Mr. Monroe declared, "Opposition to the designation of the water body is not that it establishes a precedent. It's that it establishes a bad precedent."
However, the vote was cast in favor of the new precedent on the second day of the meeting, September 11. Seemingly, there was no damage from what appeared to be a damning admission by Acting Adirondack Park Agency Executive Director James E. Connolly at the April APA meeting, when he said that the classification of Lows Lake was part of the APA's "progression in the way it deals with water bodies." (emphasis added)
The vote came after proliferate debate about the classification and reclassification of state "lands" in the vicinity of Lows Lake, and the use of seaplanes, over several months of meetings, public hearings, and press coverage. The hearings and the editorials in the local press had shown overwhelming local opposition to classification of Lows Lake as wilderness and to prohibiting seaplanes from landing on the approximately six-mile long lake.
The lake is a popular spot for seaplane landings, but a lawsuit by the Adirondack Mountain Club, Association for the Protection of the Adirondacks, Residents Committee to Protect the Adirondacks, and Sierra Club had pressured the DEC and APA to prohibit seaplane landings. Years before Lows Lake went through the current public reclassification process, in January 2003 the APA approved the DEC's unit management plan that would eliminate seaplanes after six years, and modified it on April 17, 2009, to prohibit seaplane landings after December 31, 2011.
The practical basis cited for the decision to prohibit seaplanes was the inconsistency with the experience of the lake by wilderness-loving canoers plying the chain of water bodies known as the Lows LakeBog RiverOswegatchie wilderness canoe route.
As a result of criticism during the public hearings, the classification of the entire waters of Lows Lake as wilderness was modified to exempt the eastern end of the lake, where the private lands abut the lake and various private roads exist through the state-owned lands. These lands and the waters were classified as "primitive." However, the criticism that, whether or not the APA had the power to classify water bodies, Lows Lake could neither be "wilderness" nor "primitive" because it is an impoundment created by a relatively large, quite unnatural dam was not met by those voting in favor of the mixed wilderness/primitive classification.
The side favoring the classification of the water body used as one of its arguments the fact that land underlying the water is state-owned. Of all the elements of the staff and commissioners' reasoning, this one is particularly insidious, because the lands underlying large, navigable water bodies such as Lake George, which is within the Blue Line, are almost invariably state-owned.
Considering the APA's newly asserted power to classify the waters of lakes, with this classification asserted irrespective of whether all the shorefront lands are state-owned, and whether or not the water surface elevation or even the existence itself of the lake depends on an artificial impoundment, the question arises as to whether the APA and DEC may be at the edge of a transition to classify portions of such major lakes consistently with the classifications of portions of adjacent shorefront lands that are state-owned. Is the Lows Lake's classification a trial balloon? That is implication of the "precedent" issue so fiercely debated by the APA commissioners.
An April 8, 2009 memorandum related to unit management plan amendments affecting seaplane access to Lows Lake from John S. Banta, the APA counsel, and Mr. Connolly, when he was Acting Executive Director, to James Townsend, the State Land Committee Chair, declared:
"There are, therefore, no general management guidelines and criteria characterizing non-conforming uses or structures for water bodies which are not completely surrounded by State lands Classification proposals or Master Plan text amendments directly related to State-owned water bodies still remain important issues for Agency deliberation. The issue of either comprehensive or partial classification and management areas for water bodies where the bed of the lake has been determined to be in State ownership involves major water bodies such as Lake George, Raquette Lake, Indian Lake, Cranberry Lake, 13th Lake and others. It needs a systematic evaluation and approach." (emphasis added)
Is the APA beginning to classify lakes surrounded by a mix of ownerships and uses?
It is likely from the commissioners' debate that could be witnessed at the APA meetings and the discussion in this memorandum that the APA is stealthily moving in a direction that is much more far-reaching than the important negative human and economic impact to be expected from the elimination of seaplane access to Lows Lake.