By David Gibson, Managing Partner, Adirondack Wild
At the APA, Critical Questions about Wetland Protection Are Not Asked
APA’s staff presentation about the variance recently issued for SL Marina on Lower Saranac Lake may have been “heroic,” just as APA chair John Ernst stated. The marina has a lengthy and complex history of regulatory and legal actions since 2014 to remove wooden, dilapidated shoreline covered slips that predated the APA Act and replace them with modern boat slips out into the water, among other improvements. APA staff covered that history with competence and explained why approval of a variance to the Agency’s shoreline setback regulations would improve the shoreline’s ecological health and, of course, advance the marina’s business and services. With some 290 boat slips, this is the largest private boat marina in the Adirondack Park.
What the presentation and APA member questions did not clearly answer is why a wetland permit was not required during this round of review. A wetland permit was required and issued to SL Marina during the earlier Agency review in 2020. Why not now?
In March of this year the APA’s 2020 permit and variance for SL Marina were annulled by the Appellate Division of State Supreme Court because, stated the court, APA violated its wetland regulations by improperly valuing the wetlands in Ampersand Bay. APA gave these shallow water wetlands an incorrect value rating of two. “APA should have assigned an overall value of one to the Annex wetland,” stated the Court, “ and should have analyzed the wetlands permit application accordingly. Its assignment of an overall value of two, based upon a reading of the regulations that is contrary to their plain meaning, lacked a rational basis.”
APA’s Part 578 regulations pertaining to freshwater wetlands are perhaps the most detailed in the entire regulatory framework of the Agency. Nothing else in the 50-year-old APA law is so well defined, described, evaluated and prescribed from an ecological and regulatory standpoint. Nothing else so broadly invokes APA jurisdiction over new land use than the existence of wetlands. Practically any new land use “involving wetlands” requires an APA permit.
But not last week. When asked by an APA member “how does the wetland impact our ruling today?” the staff’s quick answer was “it doesn’t.” That answer was accepted. For an agency whose prior permit for the same marina expansion was vacated by the Court for not getting its wetland regulations right, that answer deserved more critical questioning than it got. Alternatively, Agency members could have been provided in advance with a clear, written legal memorandum from APA’s counsel fully explaining why a wetland permit was not needed for marina activity involving Value 1 wetlands in Ampersand Bay. Such a memo was neither asked for nor provided by the staff.
APA project review staff did explain that “during the review process, the applicant also minimized the potential for impacts to water quality and wetlands. To minimize the potential for impacts at the Main Marina site, the applicant reduced the footprint of proposed structures over wetlands by 1,550± square feet, with the final proposal resulting in a 272±-square-foot decrease in structures over wetlands compared to pre-existing conditions. To minimize the potential for impacts at the Annex site, the applicant reduced the footprint of proposed structures over wetlands by 18,042± square feet, with the final proposal resulting in a 231±-square-foot decrease in structures over wetlands compared to pre-existing conditions. In addition, all of the existing and proposed structures over wetlands are floating, supported by small posts, with the pre-existing buildings’ footers removed. The proposal involves fewer overall boat slips in wetlands, and all covered boat slips are located in deeper water and further from the shoreline compared to pre-existing conditions. These minimization efforts eliminated the need for any Agency permit for activities involving wetlands.”
Verbally, APA staff answered the member’s question this way: “We have no review authority at the Annex,” explaining that at the Annex in Ampersand Bay the applicant was only replacing pre-existing marina structures in a Hamlet area and had minimized wetland impacts. Furthermore, most of the covered boat slips have been moved from the Annex over to the Main Marina. Therefore, no wetland permit is needed, staff asserted.
At that moment, someone on the APA board ought to have asked: if over the past seven years large wooden structures at Ampersand Bay have been removed from those wetlands, and if now much or most of those structures involving wetlands have been replaced by floating docks, some 40 of them covered, and if the staff acknowledges that some of those covered structures are over wetlands, doesn’t this project “involve wetlands” and, if so, why doesn’t that fact alone trigger our requirement of a wetlands permit? That question was not asked.
Another APA member might have followed up with: the staff have demonstrated that the applicant has minimized impacts to wetlands in Ampersand Bay. However, the Courts vacated our prior permit for failing to follow our wetland regulations. We now admit that these are Value 1 wetlands, not Value 2 as previously classified. What are the findings and standards we must apply in Value 1 wetlands? That question was not asked either.
In Value 2 wetlands, new land use and development is only permissible if it would result in minimal degradation or destruction of the wetland and its values (Section 578.10, regulations, with underlining my emphasis). So, in Value 2 wetlands the APA staff appraisal and conclusion that the applicant had minimized impacts in Ampersand Bay would appear to be an entirely acceptable finding.
However, APA now accepts the Court’s outcome, that these same wetlands in the Bay are Value 1, where the regulatory finding or standard are entirely different. In Value 1 wetlands, new land use and development must “be compatible with preservation of the entire wetland and not result in degradation or loss of any part of the wetlands and its values” (my emphasis).
New land use and development in these Value 1 Adirondack Park wetlands at Ampersand Bay or anywhere else cannot be minimized because minimization is not the review standard. The standard at Ampersand Bay should have been complete avoidance of impacts to any part of the wetland. So, the staff’s written and verbal conclusions about minimizing impacts to wetlands in Ampersand Bay should have been seen by APA members as unacceptable under the wetland regulations.
Bogs, emergent marsh, deciduous swamp, deep water marsh, shrub swamp, coniferous swamp, wet meadow, wetlands in open water, wetlands with unusual species abundance or diversity, and so forth are all valuable wetland cover types in the APA regulations, all of which are given a value rating of 1 to 4. From flood mitigation, to stormwater control, to wildlife habitat and water quality benefits, these wetlands, while occupying less than one tenth of the Park’s acreage, have a hugely outsized and positive impact on the quality of all life in the Park, and especially so during climate change and altered precipitation regimes. Value 1 wetlands are that much rarer, and even more impactful and important to protect.
Indisputably, Ampersand Bay and SL Marina’s Annex site have Value 1 wetlands. APA staff characterized them as containing “extensive deepwater marsh, shrub swamp, and emergent marsh wetlands with a value rating of ‘1’.” In future, there will be other requests elsewhere in the Park to develop in or near Value 1 wetlands. In all such cases, the regulations calling for the highest review standard should be consistently applied. APA should not have just acknowledged what the Court found, that these are Value 1 wetlands in the Bay; APA should have required a wetlands permit and issued findings and conclusions that the applicant’s project would not result in wetland loss or degradation. These could have been evaluated and the permit issued without in any way stopping the desired marina improvements.
Does that appear more a question of process and less one of substance? Perhaps that is so. But, perhaps it is both. Proper process helps to ensure suitable rigor in the review of new land use and development. The APA members ought to have held the staff to their legal standard protective of the Park’s highest value wetlands. Instead, they failed to ask for a legal memo, failed to follow-up critical questions and, in the end, let the staff answer that they had no wetland jurisdiction in Ampersand Bay go unchallenged.
What is particularly troublesome is that last week the APA, after being reversed by the Appellate Division of State Supreme Court over the Agency’s failure to follow its wetland regulations, still failed to take its legal responsibilities for wetland protection seriously enough. By its actions last week, APA continues to demonstrate that it places applicants and expedience ahead of its legal duty to “insure optimum overall conservation, protection, preservation, development and use of the unique scenic aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Park” (Section 801 of the Act, unchanged since 1973).