December 31, 2003

Jeff Wiegert
NYSDEC, Region 3
21 South Putt Corners Rd
New Paltz, NY 12561

Re: Proposed Amendment to the Hudson Highlands Unit Management Plan to Accommodate an Experimental Forest at the Nimham Mountain Multiple Use Area in the Town of Kent, Putnam County

Dear Mr. Wiegert,

Riverkeeper, Inc. is a not-for-profit organization dedicated to protecting water quality and quality of life in the Hudson River Valley and the New York City Drinking Water Supply watershed, the source of unfiltered drinking water that serves over nine million New Yorkers. As a signatory to the 1997 Memorandum of Agreement, Riverkeeper supports the goals of the Watershed Forestry Program of educating foresters by demonstrating best management practices (BMP) and teaching private landowners about the economic benefits of practicing sustainable forestry on their property as a preferable alternative to more high-impact development. However, Riverkeeper is concerned that site-specific facts at Nimham Mountain, the experimental nature of the proposed project, and the potential to adversely impact water quality in the West Branch Reservoir make this an inappropriate location for such use. To properly address these concerns, Riverkeeper requests that the Department of Environmental Conservation (DEC) conduct a full New York State Environmental Quality Review Act (SEQRA) review of the proposed Amendment to the Hudson Highlands Unit Management Plan (the “proposed UMP Amendment”) and complete a full Environmental Impact Statement (“EIS”) before taking any further action.

I. A full Environmental Impact Statement must be prepared to satisfy SEQRA requirements.

A. The proposed amendment to the Hudson Highlands Unit Management Plan is a Type I agency action subject to SEQRA.

“Actions” are defined by SEQRA as “projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies.” NY ECL § 8-0105(4)(i). SEQRA regulations include as agency actions “projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure that are directly undertaken by an agency . . . [and] agency planning and policy making activities that may affect the environment and commit the agency to a definite course of future decisions.” 6 NYCRR § 617.2(b). An “agency” means a “state or local agency.” 6 NYCRR § 617.2(4).

The DEC’s proposed Amendment to the Hudson Highlands UMP (the “proposed UMP Amendment”), which would alter the schedule of forest management actions to be implemented within the 415-acre Subcompartment B at Nimham Mountain Multiple Use Area (“Nimham Mountain MUA”) to accommodate the experimental model forest project, is an action that directly alters the use, appearance and condition of natural resources, and is obviously within the definition of an “agency action” contemplated by SEQRA and its implementing regulations. Further, it is a Type I action because it involves the physical alteration of more than 10 acres of land. See 6 NYCRR § 617.4(b)(6)(i). Since it will impact more than 10 acres and involve clearcutting, the proposed amendment and model forest project do not fall into the silvicultural exemption making certain silvicultural activities Type II actions. 6 NYCRR § 617. 5 (c)(14). The DEC itself acknowledges that the proposed UMP Amendment is a Type I agency action subject to SEQRA in the draft negative declaration included in the materials distributed at the public information meeting held on October 2, 2003.

B. To date, the DEC has failed to take a “hard look” at the project’s potential environmental impacts.

The fact that an action or project is a Type I action “carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an [environmental impact statement].” 6 NYCRR § 617.4(a)(1). In making its determination of significance, an agency must “identif[y] the relevant areas of environmental concern, [take] a ‘hard look’ at them and [make] a ‘reasoned elaboration’ of the basis for its determination.” H.O.M.E.S. v. New York State Urban Dev. Corp., 418 N.Y.S. 2d 827, 832 (1979). To make its determination, an agency must review an Environmental Assessment Form (“EAF”) for the project and “compar[e] impacts which may be reasonably expected to result from the proposed action with the criteria listed in [the SEQRA regulations].” 6 NYCRR § 617.4(1). These criteria include “a substantial adverse change in existing . . . ground or surface water quality . . . ; . . . the removal or destruction of large quantities of vegetation or fauna; . . . the impairment of the character or quality of . . . aesthetic resources . . . ; . . . [or] a substantial change in the use, or intensity of use, of land including . . . open space or recreational resources, or in its capacity to support existing uses.” Id. at § 617.7(c)(1).

Analysis of the July 3, 2003 Full Environmental Assessment Form for the currently proposed project (“Project FEAF”), however, shows that if it were made final, the DEC’s negative determination of significance would not meet the “hard look” standard because it erroneously denies the potential for numerous negative environmental impacts which could clearly result from this project. In addition, comparison of the Project FEAF and the prior FEAF prepared for the 1994 Hudson Highlands UMP (“UMP FEAF”) reveals obvious inconsistencies between the two. Clearly, this project satisfies any and all of the above listed criteria to indicate the potential for numerous significant environmental impacts, and the DEC has thus far failed to take a “hard look” at the proposed project’s potential impacts. A full Environmental Impact Statement must be prepared to adequately address these, and other, concerns.

C. The draft negative declaration fails to state a “reasoned elaboration” of the basis for DEC’s determination of non-significance and is an improper conditioned negative declaration.

After identifying the relevant areas of environmental concern and taking a “hard look” at them, an agency must state a “reasoned elaboration of the basis for its determination.” H.O.M.E.S., at 832. The reasons listed in the draft negative declaration to support the determination of non-significance state that the planned activities will be performed in accordance with policy and procedure set forth in DEC handbooks, best management practices (“BMPs”), and state regulations. This is a statement of how the proposed project will be carried out, not a “reasoned elaboration” of reasons why the DEC has determined the project will not have any significant environmental impacts.

Further, the use of recommended BMPs and compliance with DEC handbooks are, in effect, conditions placed upon the project justifying a determination of non-significance. If the current draft negative declaration were to become final, it would be a conditioned negative declaration. Conditioned negative declarations are only applicable to unlisted actions under SEQRA, and thus improper for this Type I action. 6 NYCRR. § 617.2 (h), 617.7(d); see also Merson v. McNally, 90 N.Y.2d 742, 752 (1997). In Merson, a planning board identified potential large environmental impacts of a project during the initial SEQRA review process and the applicant continually revised and mitigated the impacts of its proposal in response to points raised by interested parties. Merson, at 748. The New York Court of appeals held the negative declaration issued after the environmental impacts of initial proposal were identified and mitigated through open negotiation between all interested parties to be proper. Id. Here, however, the negative declaration will be issued by the same entity that is proposing the project and - if the negative declaration is made final as it now stands - with no input from other interested parties. Because they have shown interest in participating in the SEQRA process, other interested agencies such as Kent Town Board or Planning Board, and local citizens’ groups should be invited to participate.

D. An alternatives analysis is required to comply with SEQRA.

Because of the numerous potential negative environmental impacts that could result from the proposed UMP Amendment, Riverkeeper urges DEC to prepare an EIS that considers and fully assesses alternatives to the proposed project. SEQRA mandates that “agencies shall . . . choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.” NY ECL § 8-0109. Central to accomplishing this task is the analysis of a reasonable range of alternatives, a required part of an EIS. NY ECL § 8-0109(2)(d), 6 NYCRR § 617.9(b)(5)(v). The range of alternatives can include alternative sites, technology, scale or magnitude, design, timing, use and types of action. 6 NYCRR § 617.9(b)(5)(v).

One of the most important alternatives is the option of an alternative site. Such potential sites should be considered in an EIS, especially in light of the fact that one of the goals of the model forest program is to educate private landowners about the value they can get from their land by practicing sustainable forestry as opposed to selling it for high-impact development. Placing a model forest on private lands will make the demonstration more realistic than on DEC lands. The idea of forging a partnership with private landowners will be addressed in more detail below.

In addition, an alternatives analysis is necessary in order to assess a no-action alternative, and the evaluation should consider “the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the proposed action.” Id. The value of such an evaluation for this project is obvious.

II. An “experiment” should not be conducted on the shores of the West Branch Reservoir.

A. What, exactly, are the objectives of the proposed experiment?

The proposed UMP Amendment indicates that the “primary objective of the Modle Forest Program is to conduct research on forest management treatments and their impacts on water quality.” However, little information is provided regarding the detail or goals of this experiment. The amendment merely states that “[i]nitial research will study the effects of a 40-60% basal area (a measure of forest stand density) reduction on an 85 acre watershed with intensive study and research conducted on stream water chemistry and stream biota.” This leads one to infer that trees will be removed until some unstated threshold is reached and there is an observable degradation of water quality in the stream that will be monitored. While such a study is theoretically beneficial to gaining a better understanding of forestry activities on water quality, Riverkeeper questions the wisdom of conducting such an experiment at Nimham Mountain, on a tributary that runs directly into the unfiltered West Branch Reservoir.

Several points have been made by project proponents (DEC and State University of New York – College of Environmental Science and Forestry staff) to assure the public that the results of this experiment are relatively predictable and thus no negative impacts will result. Yet these assurances are not sufficient to satisfy proper SEQRA review and must be fully addressed in an EIS.

First, the proposed UMP Amendment explains that Best Management Practices (BMPs) set forth in the “Model Forest Road Construction Guidelines” will be used to “reduce or eliminate” soil erosion. However, these BMPs apply only to mitigation of road building activities, and do not apply to the impact from the experimental removal of 40-60% of the basal area within the allocated watershed.

In addition, project proponents have indicated at several public information meetings that the results of the experiment at Nimham Mountain are predictable, and thus do not pose a threat to water quality, because a similar study to that proposed at Nimham Mountain was already conducted at the Frost Valley model forest site (but results remain “unpublished”). If a comparable study was already conducted, why do it again? In the alternative, if the studies are not similar, the Frost Valley results cannot be used to assume that no negative impacts will result from the experiment at Nimham Mountain.

In an effort to better understand research activities at Frost Valley, Riverkeeper contacted Douglas Burns, a hydrologist with the U.S. Geological Survey’s Watershed Research Section, who helped conduct the Frost Valley study. He explained that differences do exist between the two sites. In an e-mail dated November 5, 2003 to Audrey Friedrichsen, an intern for Riverkeeper and the Pace Environmental Litigation Clinic, Mr. Burns explains:

From a forest ecology point of view there is quite a bit of difference between the East and West-of-Hudson watersheds. The forest at Frost Valley is a northern hardwood forest dominated by sugar maple, American beech, red maple, and yellow birch. This forest is reflective of the climate, soil conditions, and disturbance history in the area. The forest at Ninham (East-of-Hudson) is a completely different forest type dominated by red oak and some other tree species. The East-of-Hudson region has a warmer climate, different soils, and a different disturbance history than the West-of-Hudson. The Catskills have been logged heavily for leather tanning and later saw logs, whereas the area around Ninham was used for agriculture in the 19th and early 20th centuries. These differences in the climate and disturbance histories results in significant differences in the chemistry and nutrient contents of these soils. Thus, we might expect that the forests and water quality in each region would respond much differently to similar types of harvest. From a research perspective, this is why we are interested in doing the study at Ninham.

Thus, the results of the Frost Valley study do not appear to reliable source of assurance that no negative impacts will result from the proposed experiment at Nimham Mountain.

Lastly, provisions of the 1997 Watershed Memorandum of Agreement (MOA) and the Filtration Avoidance Determination (FAD) require DEP to evaluate the effectiveness of MOA programs. In § 6.4.4 Watershed Forestry Program of New York City’s Watershed Protection Program Summary, Assessment and Long-term Plan (2001), DEP describes 4 model forest sites in the New York City watershed that have provided baseline data for studying the impacts of silvicultural treatments on water quality. According to DEP’s Annual Research Objectives Report (2003) at 10, submitted as a requirement of FAD § 5.1, DEP has completed baseline measurements and treatments for 3 sites in the West Branch Reservoir watershed. Id. at 11.

Results from the first year after thinning at all three West Branch sites indicate a substantial increase in numbers of seedlings. All three sites now have in excess of 10,000 tree and shrub seedlings per acre… all have experienced some increase in exotic/invasive cover. (Id.)

In addition, DEP intends to continue treatments “at least two more times over the next 5 years.” Id. In light of the fact that DEP currently has ongoing forestry treatment experiments at three sites in the West Branch watershed, DEC’s proposal to replicate the same treatments on State lands seems superfluous and ill conceived. Given the proximity of Nimham Mountain to the West Branch Reservoir, it is particularly disturbing that DEC proposes extensive clear-cutting treatments when the preponderance of data suggests that such an “experiment” will result in the widespread establishment of invasives rather than the restoration of native vegetation.

B. The DEC should not conduct an experiment on valuable forest buffer lands, and should assess opportunities to relocate the proposed model forest to an alternate site on private lands that are farther removed from the West Branch Reservoir.

It is well established that healthy forests provide an important buffer to safeguard water quality. The Watershed Forest Ad Hoc Task Force took this position in 1996, stating that “well-managed forests provide the most beneficial land cover for water quality protection.” Watershed Forest Ad Hoc Task Force, Policy Recommendations for the Watershed of New York City's Water Supply, July 1996. Other reports reach the same conclusion that riparian forest buffers “protect water quality by reducing the amount of sediment, nutrients, and other pollutants that enter streams, lakes and other surface waters.” Virginia Cooperative Extension, Understanding the Science Behind Riparian Forest Buffers: Effects on Water Quality, 2000. In addition, The World Bank/WWF Alliance for Forest Conservation and Sustainable Use acknowledged the same thing, stressing the importance of forest protected areas to drinking water. See World Bank/WWF Alliance for Forest Conservation and Sustainable Use, Running Pure: The Importance of Forest Protected Areas to Drinking Water, August 2003. Running Pure specifically discusses the New York City Watershed, describing the Land Acquisition Program established pursuant to the 1997 Memorandum of Agreement as essential to enabling the City to build a “buffer” of protected forests around the unfiltered drinking water reservoirs. See Running Pure at 88.

The proposed project, however, seeks to eliminate more critical buffer forest for the sake of an experimental project with questionable benefits. According to Kevin Brazill, the watershed forestry program manager for the Watershed Agricultural Council, about 85% of the 1,972 square mile NYC watershed is privately owned, and this percentage is likely higher for the more densely populated East-of-Hudson area that includes the West Branch basin. See Marc Ferris, Logging? Not on Mt. Nimham, Locals Say, N.Y. Times, Nov. 23, 2003, at 3(Westchester Weekly). Much of it is already heavily developed and the remaining forested land may still be logged by private landowners. The reality of ever-encroaching sprawl heightens the necessity for publicly owned lands to be preserved as a fully intact buffer for the West Branch Reservoir. Failure to do so could lead to the extremely costly alternative of having to build filtration facilities.

Riverkeeper acknowledges the theoretical benefit of conducting further studies on the effects of forestry activities and use of BMPs on water quality, and also understands that other model forest sites have been located on public lands. However, those model sites are in the Catskill/Delaware watershed, an area that faces far less pressure from development than Putnam County, and are located in place much further removed from the West-of-Hudson reservoirs. Due to concerns about the experimental nature of a project directly adjacent to the West Branch Reservoir, and the particular need to preserve public lands in Putnam County from already intense development pressures, Riverkeeper suggests that the DEC consider partnering with private landowners to relocate the proposed model forest to another East-of-Hudson location. There are a limited numbers of parcels left in the East-of-Hudson watershed large enough to qualify for the DEP’s forestry easement program, or New York State’s 480A program (which raises additional questions about the demand for a new model forest East-of-Hudson when three other model forests already exist). However, one landowner in Kent, Mr. Passatti, who already participates in both programs, has generously offered his 200 acre parcel for use as a model forest site at the Kent Town Board meeting on December 8, 2003. The DEC should prepare an Environmental Impact Statement that fully explores the use of this and other alternative sites.

III. The proposed UMP Amendment and model forest plan pose significant threats to state-regulated wetlands, streams, and the West Branch Reservoir, which should be assessed in a full Environmental Impact Statement.

DEC should conduct a full environmental review and prepare an Environmental Impact Statement (“EIS”) for this project. Under SEQRA, an EIS is required when an action “include[s] the potential for at least one significant adverse environmental impact.” 6 NYCRR § 617.7(a)(1). This is clearly the case here. The proposed UMP Amendment makes significant changes to the Schedule of Forest Management Actions for Nimham Mountain. UMP Fig. 4. It clears the way for an 85-acre forest and wetland area to receive experimental treatment of a 40-60% forest stand density reduction by means including clearcutting, as well as understory treatments that contemplate the use of herbicides and controlled burns. The project also entails operation of heavy machinery for road-building and logging in the affected area. As such, the project may negatively affect water quality in the West Branch reservoir and impact wetlands, watercourses, wildlife, recreational uses, and viewsheds on the site. An EIS is necessary to properly evaluate all of these potential impacts.

A. Potential impacts to the West Branch Reservoir.

Riverkeeper’s primary concern is with the proposed project’s potential negative effects on water quality in the West Branch Reservoir. The proposed model forest at Nimham Mountain will be located significantly closer to a drinking water reservoir than the three existing watershed model forests in Delaware and Ulster Counties. The stream around which clearcutting, understory removal, herbicide, and fire treatments will occur runs downhill on steep slopes from the treatment area, under Route 301, and directly into the West Branch Reservoir. Riverkeeper staff observed that trees currently marked for removal are located as close as three feet to the stream that leads directly into the West Branch Reservoir. The close location of the experimental forest to the reservoir means that sediment runoff from the effects of clearcutting, road building, truck traffic on the forest road and skid steers dragging trees through the forest has a direct line through the stream to a drinking water supply. In addition, since the reservoir itself is located much closer to the point of consumption of the drinking water it provides, the water supply system will have less time to mitigate the effects of the forest treatment activity on the stream and reservoir.

New York courts have held that there must be strict compliance with SEQRA when public drinking water sources are at stake. Doremus v. Town of Oyster Bay, 711 N.Y.S.2d 443, 447 (2d Dept. 2000) (holding that local board violated SEQRA by failing to order an SEIS where site was in an area that had been designated for special groundwater protection after SEQRA process closed); Bryn Mawr Props., Inc. v. Fries, 554 N.Y.S.2d 721, 722-23 (2d Dept. 1990) (upholding requirement that applicant prepare SEIS, noting that “[i]t is of critical importance that the . . . proposed development is situated on the shores of . . . a former reservoir which is still a potential source of potable water). This model forest is located adjacent to a currently used, unfiltered drinking water reservoir, so the DEC must take an extremely “hard look” at the potential effects of this project before allowing it to go forward. The Project FEAF, however, summarily indicates that the proposed action is compatible with adjoining/surrounding land uses within a ¼ mile. Project FEAF at 7. It also indicates the project will not affect surface or groundwater quality. Id. at 10. Clearly, the draft negative declaration already fails the “hard look” test.

The West Branch Reservoir is a key component of New York’s water supply system because it is the receiving body for all of the water coming from the Delaware watershed on the west side of the Hudson River. The city’s drinking water supply is currently unfiltered, and subject to a Filtration Avoidance Determination (FAD) from the United States Environmental Protection Agency. Under the FAD the City must maintain the current high quality of its drinking water, but the project at Nimham Mountain may jeopardize the water’s status. The Project FEAF ignored this potential impact, and an EIS must be prepared that evaluates the project’s potential impacts on drinking water quality.

B. Potential impacts to on-site wetlands and watercourses on Nimham Mountain.

An EIS is also necessary to evaluate the potential impacts on the wetlands and watercourses at Nimham Mountain that will occur due to the proposed experiment's clearcutting and logging activities, and the use of herbicides. As depicted on maps distributed with the proposed UMP Amendment materials, it appears that clearcutting and use of herbicides is planned in stands that are within or in very close proximity to onsite-wetlands and watercourses that ultimately run into the West Branch Reservoir. Riverkeeper also requests that DEC comply with any and all state and federal laws and regulations and obtain the appropriate permits required for this project.

The Project FEAF indicates that a 13- acre freshwater wetland, designated LC-12, exists at Nimham Mountain. Project FEAF at 3, 4. As such, it is subject to protection under the New York State Freshwater Wetlands Act. The project area also contains two unnamed Class B streams and an unnamed Class D stream, all of which eventually flow into the West Branch Reservoir. Id. at 4. The Project FEAF states that three NYSDEC permits are applicable in this situation: Cooperative Agreement #00027, Permit #3-3720-00311/00001, and Temporary Revocable Permit #637, there is no explanation of what these permits cover, however. And, although the Project FEAF indicates the project will affect a waterbody designated as protected under Articles 15, 24 or 25 of the Environmental Conservation Law, it only describes the culverts, bridges and pipes that will be built in the streams for erosion control - it does not address any impacts to the wetland from use of herbicides or other treatments. Id. at 10. And, at the Kent Town Board meeting on December 8, 2003, DEC staff stated that there is currently no draft plan to govern the use and application of herbicides within the project area. To the extent that DEC has not addressed all potential physical and chemical impacts on wetlands and watercourses, Riverkeeper requests that DEC include a full analysis of these issues in an EIS. DEC should also fully explain the state permits it believes are applicable to the situation, and clearly explain whether it plans to operate under existing or future permits.

The Project FEAF also states that U.S. Army Corps of Engineers Clean Water Act Section 404 Nationwide Permit #3 (“NWP #3”) covers the project subject only to DEC’s submission of a Letter of Notification to the Corps. Project FEAF at 7. This statement in is in error for two reasons. First, even if NWP #3 were applicable in this situation, the waters in the East-of-Hudson watershed have been designated Critical Resource Waters (“CRWs”) and as such the New York District of the Army Corps of Engineers must determine that the impacts to CRWs from the proposed project will be “no more than minimal.” U.S. Army Corps of Engineers, Public Notice of New York Regional Conditions for Nationwide Permits and Designation of Critical Resource Waters, May 21, 2002, available at http://www.nan.usace.army.mil/business/buslinks/regulat/permits/index.htm. Second, NWP #3 is entitled “Maintenance” and “only authorizes activities that restore an area to its previous condition.” 65 Fed. Reg. 12818, 12886 (Mar. 9, 2000); 67 Fed. Reg. 2020, 2030 (Jan. 15, 2002). Therefore, it is not applicable to the proposed project. In addition, recent case law from the Federal District Court for the Northern District of California has acknowledged that the point sources created by logging operations - such as ditches, culverts, channels and gullies - that subsequently discharge pollutants into waters of the United States may be subject to a Clean Water Act Section 402 permit. See Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., No. C 01-2821 MHP, October 14, 2003. Thus, DEC must determine whether and what type of federal permits are necessary for this project.

IV. An EIS is necessary to evaluate additional potential significant negative environmental impacts.

A. And EIS is necessary to evaluate the potential impacts from releases of arsenic.

Public comments made at the October 2, 2003 public information meeting raised concerns about the potential release of arsenic due to disturbance from the proposed forestry activity. Reportedly, arsenic was previously actively mined on or near Nimham Mountain, and DEC forester Jeff Wiegert, acknowledged that veins of arsenic are “all over” the Ninham Mountain area. In fact, the UMP FEAF indicates arsenic deposits exist at Nimham Mountain as “unique or unusual land forms.” UMP FEAF at 3. The Project FEAF, however, indicates there are no unique or unusual landforms, and claims that no effect to such land forms will result from the project. Project FEAF at 4, 9. The Project FEAF for the UMP Amendment has clearly failed to take into account a previously identified natural feature of the area. An undetected vein disturbed by the proposed activities may result in the release of arsenic into the stream and potentially the reservoir. It may also have effects on the people working on the project, the wildlife, and the water supplies of the surrounding community. Arsenic routes of entry include inhalation in addition to ingestion, meaning that no direct physical contact is required for assimilation. Considering that arsenic compounds are highly toxic and carcinogenic (Material Safety Data Sheet), an EIS is necessary to evaluate the potential for such contamination.

B. An EIS is necessary to evaluate the effects the use of herbicides will have on wetlands and watercourses in the Nimham Mountain MUA, the West Branch Reservoir, and water supplies for the surrounding community.

The Project FEAF answers in the negative the question whether the project will use herbicides or pesticides, yet the project description in the proposed UMP Amendment clearly contemplates the use of herbicides. Project FEAF at 6. Jeff Wiegert has clarified this point to some extent at the December 8, 2003 Kent Town Board meeting by stating that it is the herbicide commonly called “Roundup” that may be used. Like many herbicides, Roundup [n-(phosphonomethyl)glycine, glyphosphate] is toxic and can be assimilated through skin contact (MSDS). The use of herbicides may affect the wetlands and watercourses in the Nimham Mountain area and in turn the West Branch Reservoir. It may also affect the well water of nearby residents. As previously noted, there is currently no draft plan for herbicide use. An EIS is necessary to appropriately identify the exact chemicals that will be used, how, when and in what quantities they will be applied, as well as the potential impacts of that use on all of the waterbodies at issue.

C. An EIS is necessary to evaluate potential negative effects on wildlife at Nimham Mountain.

Despite calling for a 40-60% forest density reduction and road-building, the Project FEAF indicates the proposed action will not result in a physical change to the project site, that zero acres of vegetation will be removed from the site, and that there will be no affect on any threatened, endangered or non-threatened or non-endangered species. Project FEAF at 9, 5, 12. However, the proposed project is likely to have a negative impact on wildlife at Nimham Mountain. Many species are listed as making the lands of the Hudson Highlands UMP their home. UMP at 9-11, UMP. Appx. 4, UMP Appx. 5. Statements made by local citizens at the October 2, 2003 information meeting indicate that pair of nesting bald eagles has recently been spotted on Nimham Mountain, which may be disturbed by the operation of heavy machinery, road-building and other logging activity, as well as the loss of habitat. The Project FEAF has not taken this into account. In addition, the project will obviously affect the insects and wildlife in the stream that will be the subject of study. These potential impacts on wildlife and vegetation in the MUA should be evaluated in an EIS.

D. An EIS is necessary to evaluate potential aesthetic impacts on the forest at Nimham Mountain.

The Project FEAF indicates there are no scenic views known to be important to the community or impact to aesthetic resources despite the presence of the famous fire tower atop Nimham Mountain. Project FEAF at 4, 13. Yet, the Summary of Public Comments found in Appendix 9 of the 1994 Hudson Highlands UMP indicates that “[w]ithin the 1600 managed acres, light or no cut buffer strips will be maintained along roads, paths, waterways, or viewscapes.” 1994 Hudson Highlands UMP at 127. Although this statement refers generally to all the lands managed within the Hudson Highlands UMP, all of those features clearly exist at Nimham Mountain, and may be compromised by the proposed UMP Amendment.

The proposed project consists of treatments that will have a huge physical impact on the forest itself by removing trees, understory and other vegetation. This may impact the viewshed, particularly from the fire tower, by creating a gaping hole in the treeline along ridgelines, as well as the historic Coles Mills Road (which appears to be more accurately a forest path/trail), which is now targeted for “improvement.” The construction of the road on the existing path will require blasting and the removal of stone walls that currently line both sides of the path, and will likely disrupt the soil and vegetation alongside. In addition, the path run along a ridge at the top of a steep slope running down into the stream below, which runs into the West Branch Reservoir. Large machinery used to create the road and carry out the logging will tear up soils and vegetation along the steep slopes of the mountain. The aesthetic impacts of the proposed project should be evaluated in an EIS.

E. An EIS is necessary to evaluate the potential negative impacts on recreational uses in the Nimham Mountain MUA.

Despite the fact that the project entails turning over 415 acres of the Nimham Mountain MUA to the forestry program – almost half of its total acreage – the Project FEAF indicates there will be no effect on the quantity or quality of existing or future open spaces or recreational opportunities. Project FEAF at 13-14. Current recreational uses of the Nimham Mountain MUA include hiking, mountain biking, camping, picnicking, hunting, trapping, climbing, snowmobiling, horseback riding and cross country skiing. State multiple use areas are defined as “parcel[s] of land owned by the state acquired for outdoor recreation, including public camping[,] hunting, boating, winter sports, and, wherever possible, to also serve multiple purposes involving the conservation and development of natural resources, including the preservation of scenic areas, watershed protection, forestry and reforestation.” New York State DEC, How New York State Lands Are Classified, at http://www.dec.state.ny.us/website/dlf/publands/landclass.html.

Forestry activities should not displace other uses at the already heavily used Nimham Mountain MUA. The Hudson Highlands UMP states that the forests of the Management Unit are in a stage where “one use or service can no longer be expanded greatly without having some impact on other uses and services or on the environment as a whole.” UMP at 25. Amending the UMP to turn over almost half of the total acreage of the Nimham Mountain MUA for use as an experimental forest and logging operation will necessarily push out the existing recreational uses, and as discussed above, negatively impact water quality. This potential effect of the proposed project should also be studied in an EIS.

F. An EIS is necessary to evaluate the potential effects on historical features at Nimham Mountain

The Project FEAF also indicates there will be no impact on historic features. Project FEAF at 13. However, the Mount Ninham Fire Tower is officially registered in the National Historic Lookout Register (US #314, NY #21), and view from this lookout will be impacted by the proposed project. Construction of the 15-foot wide road will obviously destroy the existing stone walls that line the historic Coles Mills Road. Statements made by citizens at the October 2, 2003 information meeting indicate that it is possibly a 2,000 year old Native American footpath, and Nimham Mountain continues to hold much significance for the native people who still live in the area, as its name implies. In addition, Kent Town Supervisor Annemarie Baisley has stated that historic local family cemeteries are located on Nimham Mountain. An EIS is necessary to identify potential historic structures, including roads, stone walls and chambers, cemeteries, and significant spiritual sites for Native Americans that may be destroyed and lost forever if the project is allowed to go forward without review.

V. The United States Congress is currently contemplating a Highlands Stewardship Act

Recently, the United States House of Representatives expressed their concern for the Highlands Region of the Northeast and their intent to preserve it by approving the Highlands Stewardship Act by voice vote on November 21, 2003, which could provide millions of dollars for land conservation in the area. Highlands Stewardship Act, H.R. 1964, 108th Cong. May 6, 2003. Language in the bill describes the Highlands Region as an environmentally sensitive area that provides clean drinking water to over 15 million people in metropolitan areas in Connecticut, New Jersey, New York, and Pennsylvania; provides critical wildlife habitat; maintains an important historic connection to early Native American culture, colonial settlement, the American Revolution, and the Civil War; contains recreational resources for 14 million visitors annually; and provides other significant ecological, natural, tourism, recreational, and economic benefits. Id. As the central part of the Highlands region and the East-of-Hudson watershed, Nimham Mountain should be recognized as an important and environmentally sensitive area, making it extremely important that any significant project proposed in the area should be subject to strict scrutiny before it is allowed to go forward.

VI. The Town of Kent and its citizens are opposed to locating the proposed Model Forest and conducting logging activities at Nimham Mountain.

On December 8, 2003, the Kent Town Board passed a Resolution stating the opinion that “a scientific experiment that may pose a harm to our environment and our drinking water supplies through the use of logging on steep slopes, the spraying of herbicides, skid road building and other methods that may force many recreational users off these lands . . . [is] not compatible with the primary recreational and aesthetic uses of these lands . . . .” In addition citizens of the town including local Native Americans have expressed that they strongly oppose the proposed project, and like Riverkeeper, have many concerns about its potential impacts.

Once again, Riverkeeper urges DEC to complete a full EIS proposed UMP Amendment, consider alternative sites for the proposed project, and the extent to which such an experimental model forest will actually benefit the people and lands within the East-of-Hudson watershed. Thank you for the opportunity to comment.

Sincerely,

Leila C. Goldmark
Watershed Attorney

Audrey Friedrichsen
Intern, Pace Environmental Litigation Clinic;
Intern, Riverkeeper, Inc.