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FIELD NOTES: SAFEGUARDING THE WILD

ACR Should Prompt Reform of APA Project Review
by David Gibson

Update: Testimony at the Adirondack Club and Resort (ACR) adjudicatory public hearing ended on June 24. APA delivered verbatim transcripts of all 19 days of the hearing to more than 35 parties in late July. The Adjudicatory Law Judge Daniel O’Connell gave all parties two months to review the testimony. Closing statements are due by September 23. Each party then has a month to comment on the various closing statements. After that, the hearing will officially close and the record of the hearing delivered to the APA for its deliberation. Ultimately, APA’s decision must be based solely upon the hearing record.  Adirondack Wild’s closing statement will fully address the hearing evidence, and our summary and full statement will be posted on our website after the hearing is closed.

dr_michael_klemens
klemens_explains
inspecting
night_inspection
spring_salamander

Dr. Michael Klemens, conservation biologist, conducted biological reconnaissance to identify amphibians (salamanders, frogs and toads) in their native habitats on or near the ACR site, joining Adirondack Wild partners Dan Plumley (pictured here), Ken Rimany and Dave Gibson. Many Spotted Salamanders, shown here, along with other amphibians were observed crossing the road to breeding sites in adjacent vernal pools. Pictured directly above is the Spring Salamander, indicative of very high water quality.The next day, Dr. Klemens provided expert testimony at the ACR hearing in Ray Brook, where he is shown with Adjudicatory Law Judge Daniel O'Connell (at left), and in close-up pointing to the map of the ACR and describing how the proposed development would interrupt movement of salamanders between their natal wetlands (vernal pools, where they only spend one week out of the year) and their upland habitats where they return after breeding.

Photographs by Ken Rimany and David Gibson

Application was always Deficient: The ACR project was first introduced as a conceptual Adirondack Park Agency application in 2004. Seven years later, it is still massive, involving 719 dwelling units spread over 6200 acres near Tupper Lake.  Throughout the hearing, witnesses provided ample evidence showing that APA’s staff decision to deem the ACR application complete in the fall of 2006 was seriously premature. In reference to the applicant’s repeated failing to produce any kind of wildlife or natural resource studies, a key witness for APA, retired director of regulatory programs Mark Sengenberger, noted that APA can only ask for additional information and not receive it so many times. Wildlife habitat was a key piece of that missing information, Sengenberger said. As other witnesses revealed, also missing was any rigorous assessment of alternative designs of the development.

Costs of a Deficient Application: The costs of not requiring comprehensive data before deeming such a complex and controversial application complete are considerable. Between the applicant, the APA and the hearing parties, millions of dollars have been spent over six years in pre-hearing phases of the ACR without arriving at any deep understanding of the site to be developed. There are also big gaps in understanding the reliability of infrastructure and financing data in the application.  Countless person hours have been spent at APA struggling to get information out of this applicant. I suspect that several legitimate requests from citizens to send other Park projects to hearing were denied, in part, because APA is such a small agency and ACR has consumed too much of its human and economic resources since 2004.

Exciting day in the field: On April 25, partners with Adirondack Wild and our expert witness, conservation biologist and herpetologist Dr. Michael Klemens, conducted a tour of publicly accessible roads that bisect the western portion of the ACR site. Rain was predicted and occurred, the first warm rain for Tupper Lake. It turned out to be a peak migration evening for native amphibians – salamanders and frogs. Just in a short 8.5 hours of preliminary biological reconnaissance, an extremely short “snapshot” for inventorying wildlife in any complex set of habitats as large as ACR (6,200 acres), Dr. Klemens found eleven species of salamanders and frogs moving across the ACR landscape into wetlands to breed. They and their location were carefully documented. All were new species records for the ACR site, as there has been no attempt to inventory the amphibians to date despite the applicant having had six years to conduct such biological investigations.  The field work led Dr. Klemens to hypothesize on the witness stand the next day that there could be up as many as 15 species of amphibians occupying various habitats on the ACR site. There are no species of amphibians listed or described in the ACR application. The full report of Dr. Klemens’ day in the field was entered into evidence over the objections of the applicant.

Testimony at the hearing: In responding to questions at the hearing, Dr. Klemens noted that merely protecting wetlands is completely inadequate for the protection of sensitive wildlife, like salamanders. He writes in his prefiled testimony that the ACR design “completely ignores the interdependency between wetlands and surrounding uplands that most wildlife requires. For example, many amphibians move up to 1,000 feet or more from their natal wetlands into the surrounding uplands. What sense is there in protecting the wetlands where these amphibians return to breed one month each year, while destroying the upland habitat used for foraging and hibernating for the remaining eleven months f the year? How could such an approach be considered protective of the delicate physical and biological resources of the site?”

Dr. Klemens also stated at the hearing: “we are forced to spend time at this hearing debating the lack of biological data, which should have been compiled and assessed before deeming the application complete, while instead this hearing should be discussing the implications of a robust set of ecological information that actually informs how and where to site development.”

In characterizing the proposed layout of development on the ACR site, Dr. Klemens stated “this is classic sprawl on steroids.” The ACR spreads negative ecological impacts out across the landscape, he stated. He added that by compacting the design to be less fragmenting of the landscape, many objectives would be met, both economic and ecological. Less money would be spent simply reaching the site with infrastructure, for example, while the impact or zones of influence of development on sensitive areas would be smaller. His testimony revealed a well known process to successfully build housing in sensitive landscapes that involves developing a complete understanding of the project site first, mapping that information, and only then developing plans for housing which avoids the most sensitive areas and maintains the integrity of ecological processes.

This could have happened for ACR, but unfortunately this application does the very opposite, he noted. Only the APA can determine why they allowed this to happen, he stated. Asked whether or not there is sufficient biological and ecological information in the application for the APA to reach a determination of no undue adverse impact, Dr. Klemens stated “there is insufficient data to make such a determination.”

Asked whether the APA could merely place conditions on a defective application which purport to “mitigate” adverse impacts, Dr. Klemens said “a defective application should never be conditioned. It should simply be denied without prejudice, and the applicant given time to develop that information, and resubmit the application.”

Dr. Klemens is the Planning Board chairman for a town in Connecticut. In that capacity, he said he often imposes expectations on developers working within a complex, ecologically important site to identify and map sensitive resources prior to laying out development sites. “Understand the site first, and from that understanding develop plans for housing or other development.” In fact, he noted, in his experience fast-tracked applications are those that have developed good biological and natural resource data. That way, conflict is reduced, development occurs in the less sensitive places, and money is saved. The “train wrecks” result when a process does not allow for understanding natural systems in the first place, like the ACR.

In responding to cross examination, Dr. Klemens took time to explain his view that his testimony is not about whether or not development should or can take place on the ACR site. It is very likely that development is compatible with areas on the site, he said. The “real issue involved in this hearing is the amount, intensity and lay-out of that development. That’s the key.”

How can the APA use the ACR experience to improve its project review? One way is to mimic the way its sister agency, DEC, as well as many town and county planning boards utilize the State Environmental Quality Review (SEQR) Act. After determining that a project may have one or more significant environmental impacts, a step known as a positive declaration of impact, the lead agency in SEQR must require an environmental impact statement (EIS) of the developer. Project scoping invites the public to comment on the proposed topics to be covered by the EIS. “The purpose of scoping is to focus the EIS on the most relevant issues and potential impacts, including means to avoid or minimize those impacts; the lead agency may thereby ensure that the draft EIS will be a concise, accurate and complete (emphasis mine) document adequate for public review” (from: www.dec.ny.gov).

Think of the APA application process as a version of SEQR, and the APA’s review as a kind of EIS. Before deeming an application complete, the agency could invite the public to help APA undertake project scoping in order to ensure that an application actually and thoroughly answers key questions, and provides the information required for a comprehensive review of impacts. If that process were used, there might be more meaningful constituent participation with APA and fewer “train wrecks” like ACR, where so much time is spent at an APA hearing debating the paucity and reliability of information and data needed by the commissioners to reach a sound, post-hearing decision. In fact, several APA commissioners suggested reform along these lines following their approval of the FrontStreet application in North Creek in 2008. It is time for APA to put its talk into action. ■

Read the next article in Safeguarding the Wild >

13] Posted 05/14/11
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2011

12/14/11 Water Resources and the Adirondack Resort
more >
11/29/11 Reduce the Large Spatial Impacts of ACR
more >
11/29/11 November bushwack more >
10/03/11 River Management by Backhoe more >
09/10/11 River Management by BackhoeLows Lake Court Ruling more >
05/02/11 ACR Should Prompt Reform of APA Project Review  read more >

04/22/11 Conservation Easement Regulations, Standards Needed  read more >

04/11/11 Celebrating and Safeguarding the Catskill Forest Preserve, and the Benefits of Wild
Nature   read more >

03/21/11 David Gibson and Dan Plumley testify concerning Adirondack Club and Resort   read more >

03/07/11 Adirondack Club and Resort Would Fragment Adirondack Forests. Public Hearing Scheduled. Make Your Voice Heard   read more >

02/22/11 Forest Rangers: Thin Green Line  read more >

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