Forest Preserve Work Plan Policy

Commissioner Policy #78

View printable version of policy (PDF)

Attachment 1: Forest Preserve Detailed Project Work Plan Template (PDF)
Attachment 2: Forest Preserve Ordinary Maintenance Project Work Plan Template (PDF)
Attachment 3: Response to public comments on draft policy (PDF)

I. Summary

The purpose of this policy is to establish administrative procedures for assessing the impacts of construction and maintenance activities and for drafting site-specific Work Plans on the Forest Preserve permissible within the parameters established by Article XIV of the New York State Constitution, the Adirondack Park State Land Master Plan, the Catskill Park State Land Master Plan, Environmental Conservation Law, and Department Rules, Regulations and Policies. This policy supersedes Lands and Forests Policy LF-91-2, Cutting, Removal or Destruction of Trees and Endangered, Threatened or Rare Plants on Forest Preserve Lands.

II. Policy

It is the Policy of the Department ("DEC" or "Department") to require written Work Plans for the following activities on the Forest Preserve:

  1. Construction of new structures or improvements;
  2. Expansion or modification of existing structures or improvements; and
  3. Ordinary maintenance activities as further defined below.

A. Definitions Applicable to This Policy

  • Earthwork: a process that involves the movement of a portion of the earth's surface from one location to another and in a new position.
  • Footprint: the limits of disturbance of an improvement or structure.
  • Improvement: any change in or addition to the land, which materially affects the existing use, condition or appearance of the land or any vegetation thereon, including but not limited to trails, roads, tent sites, and parking areas.
  • Regional Land or Facility Manager: the person assigned as manager of a facility or land unit, often a Forester 1, Environmental Program Specialist 1, Biologist 1, Campground Manager or Conservation Operations Supervisor.
  • Regional Program Manager: the person to manage a Division Program in the Regional Office (i.e. Regional Forester, Regional Fisheries Manager, Regional Operations Supervisor).
  • Significant Earthwork: earthwork that materially changes the use or appearance of the land.
  • Structure: any object constructed, installed, or placed on the land, including but not limited to bridges, buildings, lean-tos, pit privies, fire towers, utility lines, signs, docks, and dams.
  • Tree Cutting: severing the bole of a tree from its roots by cutting it at the base, leaving a stump above the ground.

III. Purpose and Background

The lands of the Forest Preserve are protected by Article XIV of the New York State Constitution which provides in part:

"The lands of the state, now owned or hereafter acquired, constituting the Forest Preserve and now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed."

Furthermore, Environmental Conservation Law §§ 3-0301(1)(d) and 9-0105(1) provide the Department of Environmental Conservation with the jurisdiction to provide for the care, custody, and control of the Forest Preserve. Additionally, Executive Law §816 requires the Department to develop individual Unit Management Plans ("UMPs") for each unit of land in the Adirondack Park under the Department's jurisdiction. The management actions proposed in each UMP must conform to the guidelines and criteria set forth in the Adirondack Park State Land Master Plan ("APSLMP") or the Catskill Park State Land Master Plan ("CPSLMP"). In the Adirondack Park, this requirement is overseen by the Adirondack Park Agency ("APA"). Prior to adoption of UMPs, public comment is solicited on the proposed management actions, including conformance with the APSLMP or CPSLMP, and applicable laws, rules, and regulations.

UMPs are comprehensive planning documents for units of state land comprising significant acreage and often spanning multiple municipalities. As such, the information found in UMPs regarding the location, intended recreational use, and desired conditions of a particular structure or improvement is general in nature. UMPs do not generally include detailed design, layout, or construction metrics because it would be both impractical and inappropriate to provide this level of detail and analysis for every management action given the general nature of UMPs. Additionally, because of changing site-specific environmental conditions, particularly related to vegetation, detailed site information is more appropriately compiled and analyzed immediately prior to such time as the Department is prepared to undertake a management action.

In addition to the general descriptions of Proposed Management Actions described in UMPs, which are approved and developed in accordance with Article XIV of the New York State Constitution, Executive Law §816, Environmental ECL §§3-0301(1)(d), 9-0105(1), the APSLMP and the CPSLMP, it is the policy of the Department to require Work Plans which provide an analysis of the impacts of a particular management action within the confines of the above noted statutes, rules and regulations.

As a result, Work Plans are necessary to maintain a record of the planned construction and maintenance of structures and improvements. Work Plans also satisfy several other objectives related to management of the Forest Preserve by:

  • providing the appropriate level of detail to those responsible for implementing projects;
  • ensuring desired conditions for structures and improvements are being articulated and designed for;
  • assessing the potential site-specific impacts to natural resources;
  • identifying measures to avoid, minimize, or mitigate such impacts.

A. Applicable Article XIV Considerations

Threshold questions related to permissible Forest Preserve purposes are appropriately addressed in UMPs. Additionally, the proposed use for potential structures or improvements are evaluated according to the activity's history and the scope of its impacts. However, the additional descriptions of the avoidance, minimization, and mitigation of natural resource impacts identified in section V.A. of this policy are necessary to provide transparency and an explanation of the analysis routinely conducted by land managers.

The provisions of Article XIV §1 are paramount to DEC's obligation to provide for the "care, custody, and control" of the Forest Preserve. In 2021 the Court of Appeals held that "erection and maintenance of proper facilities for the use by the public which did not call for the removal of the timber to any material degree," is constitutionally permissible. The Court further clarified that the Forever Wild Clause shall be viewed as a singular clause and requires a broad analysis that includes tree cutting to determine if a particular project would alter the wild forest character of the Forest Preserve such that it would violate the Forever Wild Clause. See Protect the Adirondacks!, Inc. v. NYSDEC and APA, 37 N.Y.3d 73 (2021); see also The Association for the Protection of the Adirondacks v. MacDonald, 253 N.Y. 234 (1930); Balsam Lake Anglers Club v. Department of Environmental Conservation, 199 A.D. 2d 852, 605 N.Y.S. 2d 795 (App. Div., Third Department, 1993).

As a result, the following three questions are intended to further solicit such necessary analysis:

1. Is the proposed cutting, removal, or destruction of timber "material or substantial"?

The proposed project must be evaluated for the scale of its proposed tree cutting. Where applicable, Work Plans developed consistent with this policy will include the tree tallies identified in Section V.A.1.c. to reflect this constitutional consideration.

2. Is the degree of alteration of the existing Forest Preserve terrain permissible?

The proposed project must be evaluated for the scale of its proposed terrain alteration. Where applicable, Work Plans developed consistent with this policy will include the descriptions identified in Section V.A.1.c. to reflect this constitutional consideration.

3. Are the impacts of the proposed project on the existing wild state of the Forest Preserve permissible?

In its natural, undisturbed condition the Forest Preserve exists in a wild state. A project's location- whether near a road or development, or as part of a large, remote and intact Forest Preserve holding, or as part of a small, detached parcel, or near or adjacent to a waterbody-shapes its wild state. The ecological complexity or uniqueness of the parcel in question is also an important consideration. More intensively developed structures and improvements can be more appropriate-and have less of an impact on wild forest character-when located adjacent to or near previously developed areas rather than in remote areas. Work Plans developed consistent with this policy will include the descriptions of desired conditions and the other descriptive elements identified in Section V.A to reflect this constitutional consideration.

Work Plans completed in compliance with this policy should fully consider these questions. While the answers to any of these questions can be singularly determinative for finding a proposed project impermissible, each answer should be evaluated in the context of the other questions, as there may be mitigating factors that help determine whether or not the impacts associated with each question exceed permissible thresholds.

IV. Responsibility

It shall be the responsibility of all relevant Department divisions and staff to implement the guidelines and procedures of this policy.

It shall be the responsibility of the Regional Land or Facility Manager, to whom a given land parcel or facility is assigned for management, to ensure Work Plans are prepared. It shall be the responsibility of the Regional Program Manager to review and recommend approval or disapproval as required by this policy. The Regional Program Manager shall ensure such work plans are in compliance with UMPs (as applicable), that current best management practices are utilized, and any associated impacts on the environment are avoided, minimized, or mitigated.

It shall be the responsibility of the Regional Program Manager to review and recommend approval or disapproval of work plans for all projects that involve the cutting of woody vegetation and ensure such work plans are developed as required by this policy.

It shall be the responsibility of Department staff involved in construction and maintenance projects in the Forest Preserve to ensure that work is authorized and carried out in accordance with the approved Work Plan.

It shall be the responsibility of the Regional Director and the Division Director for the relevant program(s) or their designees to review and approve any Work Plans for modification, expansion or new construction proposed under this policy and to assign staff to coordinate with the APA where such coordination is appropriate under this policy. Additionally, such Work Plans involving cutting of woody vegetation will require approval of the Director of the Division of Lands and Forests.

It shall also be the responsibility of the Director of the Division of Lands and Forests to periodically review the provisions of this policy and recommend amendments, where necessary.

V. Procedure

A. Detailed Project Work Plans

A Detailed Project Work Plan is required for the construction of new structures or improvements and the expansion of existing structures or improvements on the Forest Preserve. A Detailed Project Work Plan is also required when modifications of existing structures or improvements require tree cutting or significant earthwork (See Attachment 1).

New structures or improvements must be approved in an adopted UMP. Provided that, in areas of the Adirondack Park Forest Preserve without an adopted UMP, the new construction or expansion of existing structures or improvements may be allowed, subject to consultation with the APA in accordance with the APA/DEC Memorandum of Understanding and Work Plan approval. In areas of the Catskill Park Forest Preserve without an adopted UMP, the new construction or expansion of existing structures or improvements may be allowed subject to approval by the Regional Director and Division Director of the relevant program as part of the Work Plan approval. Where new construction or the expansion of a structure or improvement was not anticipated in a UMP, such Work Plan shall provide a detailed description of the circumstances requiring the proposed structure or improvement.

Relocations of existing trails are considered new construction and not ordinary maintenance. Thus, trail relocations will require a Detailed Project Work Plan except under circumstances described in section "V.C., Stewardship Agreements." However, in accordance with the Memorandum of Understanding Between APA and DEC Concerning Implementation of the State Land Master Plan for the Adirondack Park ("APA/DEC MOU"), certain minor relocations may not require a UMP amendment prior to implementation of an approved work plan.

The intent of the Detailed Project Work Plan is to document the detailed, site-specific assessments conducted by Regional Land and Facility Managers when siting a particular project to ensure that an analysis of the relevant constitutional, statutory, and regulatory factors have been considered prior to the actual construction or modification of a project previously approved in a UMP.

Prior to final approval, draft Work Plans will be published in the Environmental Notice Bulletin ("ENB") for a public comment period of not less than 14 calendar days, prior to the commencement of work. The intent is to provide this site-specific detail for public review.

1. Detailed Project Work Plan Requirements

The information outlined below will inform the Department's assessment of whether the actual construction or modification of a structure or improvement is or is not approvable within the parameters established by Article XIV, Environmental Conservation Law, and Department Rules, Regulations and Policies. To provide the detail of the above analysis, the Detailed Project Work Plan shall include the following sections:

a. Description of the Desired Conditions for the Project

"Desired conditions" are statements of aspiration that describe resource conditions, visitor experiences and opportunities, and facilities the Department strives to achieve and maintain. Desired Conditions set the overall direction of a project by defining the ideal results the Department hopes to provide through the implementation of a project. Desired conditions statements can apply to any scale, from specific structures or improvements to trail networks or entire management areas. Such statements for Forest Preserve projects should be built upon the mandates found in Article XIV, the APSLMP, and the CPSLMP, including relevant land classification guidelines.

Desired conditions statements previously discussed in UMPs, policies, or guidance documents are preferable, particularly when they pertain to higher-level concepts that help reinforce ideal management principles that should be consistent across the entire Forest Preserve. This information should be achieved by providing citations to or excerpts from the UMP and/or guidance documents where applicable. Desired conditions statements will also be provided for each project that is the subject of a Work Plan. These site-specific desired conditions statements are meant to show how the higher-level concepts noted above are realized through specific management actions and may reference those broader concepts in order to further illustrate what kind of user experience and resource conditions are considered ideal at a specific site.

b. Description of Project Specifications

Detailed Project Work Plans should provide information necessary to facilitate an understanding of the project, which may include specifications, drawings, maps, dimensions of the final structure or improvement, and the materials to be used. Work plans should also describe the construction techniques and anticipated area of disturbance outside the final footprint of the structure or improvement.

Similar to desired conditions, project specifications-or design standards-including those previously discussed in UMPs, policies, or guidance documents, help reinforce consistency across the entire Forest Preserve. This information should be achieved by providing citations to or excerpts from the UMP and/or guidance documents where applicable. Where they exist, pre-existing standards should be referenced as part of a Work Plan. Where pre-existing standards cannot be applied because of unique site conditions, the Work Plan should identify such deviations, and explain why they are necessary to achieve and maintain desired conditions.

c. Description of Measures to Avoid, Minimize, or Mitigate Impacts to Natural Resources

The proposed project must be evaluated for its potential to create impacts to the surrounding forest/ecological communities. Using the list below, describe, where applicable, how impacts cannot be avoided or minimized and include additional mitigation measures. Where applicable, identify where implementation of a project will reduce or eliminate impacts that are already occurring. If the project is challenged by any of the considerations below, Work Plans will explain why this is necessary to achieve and maintain desired conditions, and how the project achieves compliance by avoiding, minimizing, or mitigating other impacts as outlined in section III.A.

  1. The removal of trees and other vegetation will be minimized to the extent possible. When trees and other vegetation are removed, mitigation will include cutting and dispersal in a manner to avoid visual impacts. All trees will remain on site and only be used for Forest Preserve purposes. For projects that require tree cutting, the following will be required:
    • a tally by species and size class of all trees 3" diameter at breast height (dbh) and over;
    • a tally of all trees between 1" and 3" dbh.
    • a description and justification for why tree cutting is required to meet the desired conditions for the project; and
    • additional mitigation measures if appropriate.
  2. Significant terrain modifications such as earthwork and soil disturbance will be minimized to the extent possible. When terrain disturbance is necessary, mitigation will include blending the project into the natural setting to the extent practicable. For projects that require significant earthwork or soil disturbance, the following will be required:
    • a description and justification for why such work is required to meet the desired conditions for the project; and
    • additional mitigation measures if appropriate.
  3. The project will avoid or minimize impacts to streams, waterbodies, and wetlands. The project will also be designed and sited to withstand erosion, prolonged flooding, and other factors caused by high rainfall events. For projects that require placement of structures, improvements, or their appurtenances in areas that are permanently or seasonally wet, or that are at risk of erosion due to high rainfall events, the following will be required:
    • a description and justification for why such work is required to meet the desired conditions for the project;
    • measures to mitigate impacts to streams, waterbodies, and/or wetlands; and
    • additional mitigation measures if appropriate.
  4. The project will avoid or minimize impacts to Rare, Threatened, or Endangered Species or important or unique natural communities whose locations are identified as "element occurrences" by the New York Natural Heritage Program. Where element occurrences are identified within a ¼ mile (1,320 feet) of the project area to be disturbed or other current recognized thresholds, whichever is greater, the following will be required:
    • a description of how the project will avoid or minimize impacts to the identified species or community.
  5. Describe any impacts that will be outside the trail corridor and if applicable, any measures to be taken to mitigate impacts outside the trail corridor or area of the proposed project.

d. Analysis of Project Location and Design Alternatives

  1. Provide at least one alternative to the preferred project location, project scope, and/or design of the structure or improvement, and assess its strengths and weaknesses as compared to the proposed project. If a "no-action" alternative is included, then at least one additional alternative should also be considered.
  2. Provide a general description of the vegetation and terrain on the alternative site, including the location of each alternative, Article XIV challenges, and natural resource impacts including the approximate size class of the trees that would be impacted as well as the amount of soil disturbance anticipated to occur from the implementation of the alternative.

e. Map(s)

Detailed Project Work Plans shall include a map, to the appropriate scale, delineating the project and showing its location.

f. Description of the Proposed Use of Motorized Equipment or Motorized Vehicles to Facilitate Construction, if any, in Compliance with Commissioner's Policy 17 (CP-17).

If motorized equipment or motorized vehicles will facilitate construction, the Work Plan must include a description of the proposed use. This use must be consistent with guidelines provided in Commissioner's Policy 17, Recordkeeping and Reporting of Administrative Use of Motor Vehicles and Aircraft in the Forest Preserve, Section III.B.Guidelines.

g. Description of Applicable Standards for Accessibility by People with Disabilities

The Americans with Disability Act (ADA) requires that new construction and alteration projects are designed to be accessible to people with disabilities. Exemptions from these requirements are allowed in situations where terrain and other factors make compliance impracticable. Exemptions apply only to specific areas where condition(s) for departure exist. All departures from the requirements will be documented and maintained in accordance with the Department's records retention policy.

2. State Environmental Quality Review Act

If the project has been reviewed pursuant to the State Environmental Quality Review Act ("SEQRA"), either as part of an existing UMP or Generic Environmental Impact Statement ("GEIS"), then no further SEQRA review is required. If the project has not undergone SEQRA review, completion of SEQRA will be required as part of the Work Plan approval and public noticing process. This is important for proposed projects in areas where there is not an approved UMP.

3. Public Notice

Draft Detailed Project Work Plans will be posted on the DEC website and noticed in the ENB for a comment period of not less than 14 calendar days. Following the conclusion of the comment period, the final approved Work Plan will include a record of comments received.

4. Review and approval process for Detailed Project Work Plans

  1. The Regional Land Manager or Facility Manager prepares a draft Work Plan and notice for the Environmental Notice Bulletin (ENB) for the project.
  2. In the Adirondack Park, the Regional Land or Facility Manager ensures APA consultation is complete as required under the DEC/APA MOU (where applicable). The Department may implement projects described in an approved UMP without consulting the APA, unless the UMP specifically requires consultation, or the proposed activity may involve regulated activities in freshwater wetlands. Projects or activities that are not described in sufficient detail in an approved UMP and are not defined in the DEC/APA MOU as ordinary maintenance, rehabilitation, or minor relocation are also subject to consultation with the APA.
  3. The Regional Land or Facility Manager ensures the draft Work Plan and ENB notice are complete before forwarding to the Regional Program Manager for review.
  4. The Regional Program Manger reviews the draft Work Plan and ENB notice to ensure it is complete and to assess the proposed project within the context of Department policies, rules and regulations, guidance documents, the relevant State Land Master Plan and Article XIV. The Regional Program Manager recommends approval or disapproval of the draft Work Plan by completing the regional review section of the draft Work Plan. Note: Regional Program Manager signature required.
  5. Work Plans recommended for approval by the Regional Program Manager are forwarded to the Regional Director for review. The Regional Director then approves transmittal of the draft Work Plan to the Central Office Lands and Forests Review Team ("Review Team") along with a draft ENB notice, for review and recommendation.
  6. The Review Team will review the draft Work Plan and ENB notice. The Review Team will include consultation with Central Office program staff for projects from other divisions as necessary.
  7. The Review Team will coordinate with the relevant Division to post notice of the proposed project in the ENB, soliciting public comments for a minimum of 14 calendar days. The proposed Work Plan will be made available on the DEC website.
  8. After the public comment period closes, the public comments received are shared with the Review Team, Division Director, and the Regional Director.
  9. The Review Team recommends approval or disapproval of the draft Work Plan to the Director of the Division of Lands and Forests.
  10. The Director of the Division of Lands and Forests approves or disapproves the draft Work Plan by completing the Divisional review section of the draft Work Plan. Note: Division Director signature required.
  11. The draft Work Plan is sent back to the region for review and approval or disapproval by the Regional Director. Note: Regional Director signature required.
  12. Approved work plans and public comments received will be retained pursuant to the DEC's record retention policy.

B. Ordinary Maintenance Work Plans

Ordinary Maintenance Work Plans shall be required for maintenance activities or modifications to existing structures or improvements that do not require tree cutting or earthwork. Additionally, Ordinary Maintenance Work Plans shall be required for projects that include hazard tree cutting.

For those activities that do not require hazard tree cutting or a modification to an existing structure or improvement, but are necessary to keep an existing structure or improvement in good working order and do not require change to the structural elements of a structure or improvement, an Ordinary Maintenance Work Plan shall not be required. For example, Ordinary Maintenance Work Plans are not necessary for the replacement of decking, railings, roofing, and siding on existing structures or improvements, the mowing or maintenance of highway/road corridors, utility corridors and lawn developed areas at DEC facilities where tree cutting or earthwork are not required, or for non-structural maintenance activities occurring within the footprint of existing structures. However, as noted above in Section V.A., where a maintenance project amounts to significant earthwork, a Detailed Project Work Plan shall be required.

When required by this policy, Ordinary Maintenance Work Plans shall include a project description that includes the following information:

  • A detailed description of the maintenance work to be performed and how it will be accomplished;
  • Project specifications or standards, including reference to any applicable UMPs or regulations;
  • Use of motor vehicles and equipment;
  • Where applicable, best management practices (BMPs) to prevent negative impacts to resources (i.e. seasonal restrictions to protect habitat).

1. Maintenance Activities Requiring Ordinary Maintenance Work Plans

  1. Maintenance of primitive trails, trail structures, primitive tent sites, and lean-tos.
    • Repair work requiring a change to a structural element of a structure or improvement that does not include tree cutting or significant earthwork.
    • Improvements and structures should be listed separately with the total length of the trail covered by a single Ordinary Maintenance Work Plan if appropriate, and in priority order of needed maintenance. Ordinary Maintenance Work Plans may be submitted by the management unit if appropriate.
  2. Maintenance of road corridors, utility corridors, parking areas, openings around buildings, and scenic vistas.
    • Projects that involve earthwork.
    • Projects should be listed individually, but a single Ordinary Maintenance Work Plan can include multiple projects if they are similar in nature or within the same management unit.
  3. Removal of dead and hazardous trees that potentially endanger people or threaten structures.
    • This includes projects involving removal of dead and or hazardous trees in developed or intensive use areas, including but not limited to campgrounds.
    • Ordinary Maintenance Work Plans should be submitted separately for each facility. However, all projects for a specific facility can be included in a single Ordinary Maintenance Work Plan. Tree counts should be included with the application.
    • Trees that are proposed to be removed should be flagged or marked.
    • Trees that are felled may be disposed of on-site or used within the same facility, provided that such wood may not be offered for sale.
  4. Boundary line surveys and maintenance requiring tree cutting.
    • No survey lines, traverse or final, are to be projected straight through the woods by the cutting of large trees to expedite the survey.
    • More than one survey project may be included on a single Ordinary Maintenance Work Plan however, separate Work Plans should be made for survey projects geographically distant from each other.

2. Review and Approval Process for Ordinary Maintenance Work Plans

  1. The Regional Land Manager or Facility Manager prepares a work plan for the project. Where appropriate, Ordinary Maintenance Work Plans may include planned maintenance activities for a calendar year. (See Attachment 2 for the Ordinary Maintenance Work Plan Form).
  2. The Regional Land or Facility Manager ensures the project Work Plan is complete before forwarding the Work Plan to the Regional Program Manager.
  3. The Regional Program Manager reviews the Work Plan to ensure it is complete and to evaluate the project for compliance with Department policies, rules and regulations, guidance documents, the relevant State Land Master Plan, and Article XIV, as applicable.
  4. Once approved Ordinary Maintenance Work Plans shall be signed by the Regional Program Manager and filed within the appropriate Regional Office. No further approval is required.

C. Stewardship Agreements

For the purposes of this policy, maintenance activities identified and included in stewardship agreements with the Department shall not require additional Work Plans. Any projects completed by volunteers or partners that require tree cutting or significant earthwork will require a Detailed Project Work Plan. For maintenance activities conducted by volunteers or partners that are not identified and included in stewardship agreements, an Ordinary Maintenance Work Plan shall be required. Examples of such agreements include but are not limited to: Memoranda of Understanding ("MOUs"); Volunteer Stewardship Agreements ("VSAs"); Temporary Revocable Permits for Use of State Lands ("TRPs"); Adopt-a-Natural-Resource Agreements ("AANRs"); and Cooperative Agreements ("CAs").

D. Emergency Procedures

In the case of actual and ongoing emergencies involving the protection of human life, public health or intrinsic resource values work where immediate action is warranted the administrative process of this policy does not apply. However, the Department's Regional Forester for the region where the activity took place must be notified within 72 hours after commencement of the action. Consistent with DEC's Commissioner Policy 17 (CP-17), Recordkeeping and Reporting of Administrative use of Motor Vehicles and Aircraft in the Forest Preserve, within 10 business days of completion of the activity and termination of the emergency the Program/Division involved in the emergency must develop a record including location, description of the activity and impacts and actions taken or necessary to minimize or mitigate impacts.

VI. Related References

Attachments