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FIELD NOTES: SAFEGUARDING THE WILD

Big Tupper Resort Amphibian Study: Science After The Fact

By David Gibson


Dr. Michael Klemens sampling for amphibians.
Photo © Dave Gibson


Dr. Michael Klemens points to how development impacts biologically sensitive sites at ACR. Photo © Dave Gibson


Spotted Salamander. Photo © Dave Gibson

 

While it has not attracted much attention yet, Preserve Associates has hired some biologists to conduct an amphibian study this spring to determine the presence of amphibians on some, but by no means all, of the lands proposed for subdivision and development at the permitted Adirondack Club and Resort (ACR) site in Tupper Lake.
According to APA correspondence, this survey is taking place or has recently taken place within 800 feet of all wetlands on seven of the small eastern great camp lots, and along Lake Simond Road Extension and the proposed but not yet developed Bypass Road.

This expenditure of money by ACR reflects a condition in the Adirondack Park Agency permit issued in January 2012 that after-the-fact biological surveys for amphibians only must be approved by APA prior to commencement of the development, with a goal of locating the presence of salamanders and frogs and their habitats, determining migratory pathways, and then planning for possible mitigation measures for the housing, driveways and roads to be developed within the Resource Management lands- so that these vulnerable animals and their habitats are not simply run over, literally and figuratively.

When other surveys for amphibians will take place on the many other lots intersecting 800 feet away from wetlands on Resource Management across the ACR’s 6200 acres is not clear, but it appears that this work will be done according to the phases of development approved by APA in 2012.
Why the amphibian study? In Adirondack Wild’s opinion, there would be no permit condition to perform any wildlife studies at all were it not for the testimony of expert witness Dr. Michael Klemens, who is a herpetologist (specializing in the study of amphibians and reptiles). The abysmal failure to conduct a broadly scoped wildlife study on the property before final project design and the hearing is still playing itself out.

After the fact biological surveys are useless for re-designing ACR to avoid or minimize significant biological impacts – contrasted with mitigation measures through expensive re-engineering of roads, culverts, curbs and drains which pose a virtual obstacle course for small amphibians. That is because the subdivision design of ACR (over 700 dwelling units, miles of roads and driveways, etc) that went to public hearing in 2011 was bereft of any serious biological survey information despite passage of seven years of pre-hearing discussions with APA and “mediation” with stakeholders. The applicant provided no biological information because for seven years they never seriously looked for birds, mammals, amphibians, plants…for anything at all. The only wildlife information in the application came, according to ACR’s own lead witness, as a result of casual observations incidental to other consultant work taking place.

This lack of information was made painfully obvious at the Ray Brook and Tupper Lake hearings, and is fully corroborated in the hearing record. The lack of serious biological data should have been the basis for APA’s denial of the application because without such data how could the APA determine there were no “undue adverse impacts”? But that is a question for the courts. As many readers know, there is a lawsuit pending which challenges the permit on these legal grounds and others. ACR must also obtain a lot of other permits from NYS DEC (at least four DEC permits are needed), from the U.S. Army Corps of Engineers and from NYS Dept. of Health. All of these applications remain incomplete according to APA documents.

So, regarding the ongoing amphibian study, documents suggest that two biologists were hired this spring in a plan approved by APA – one supervisory, and one in the field – to conduct an amphibian survey over a ten day period on just a limited number of lots and roads in Resource Management during late April to mid May.

It remains to be seen if these biologists are up to the task in terms of their competence, the integrity of their work, the amount of effort expended, and over what seasons or of what time duration. It also remains to be seen if the “mitigation” measures the consultants and developer come up with at the behest of the APA– again, assuming ACR moves forward at all – are meaningful in terms of the survival requirements of these creatures. However, as noted herpetologist (amphibian and reptile specialist) and Adirondack Wild expert witness Dr. Michael Klemens noted at the ACR hearing, obtaining some biological information is better than obtaining no information. We wish this survey work well and hope the information it uncovers will be accessible to the public.

Dr. Klemens in one day and rainy night of investigation on just a few miles of the public roads at ACR documented eleven species of amphibians migrating to their breeding ponds on April 25, 2011. This information was entered into the hearing record. Even with the minimum pre-ACR traffic existing in 2011, many were found DOR (dead on road). I do not believe that the areas Dr. Klemens and Adirondack Wild investigated over a 12 hour period in 2011 are even part of the APA’s after-the-fact requirement for a formal and comprehensive survey because they fall within the Moderate Intensity Use land use classification. Needless to say, the wetlands and amphibians do not care what land use classification they inhabit.

I felt it might interest readers to include some of the testimony related to biological studies during the ACR public hearing. Adirondack Wild’s expert is not only a herpetologist and conservation biologist, but also a landscape planner and chair of his town’s planning board outside of the Park. His testimony and responses to cross examination were central to APA’s understanding of basic criteria for conducting a biological survey of Adirondack Club and Resort – whether before the fact of permit issuance or after.


Dr. Klemens points to how development impacts biologically sensitive sites at ACR. Photo © Dave Gibson

In his testimony, Dr. Klemens repeatedly warned against conducting after-the-fact studies because a fundamental principal of conservation biology is to avoid or minimize ecological impacts before you are forced to attempt to mitigate them. Logic dictates that avoiding or minimizing such impacts can only be done before the fact of final project design and certainly before permit issuance. The improper course APA chose to take in its biased review of the hearing record and in issuing a permit leaves only mitigation as a possibility, a doubtfully effective and possibly expensive option. Yet APA’s permit only allows “non-material” changes to the approved project design, irrespective of what this biological survey comes up with. This restriction certainly hampers amphibian protection.

Anyway, here is the part of the hearing testimony and cross examination of Dr. Klemens and others which is at least relevant to the current amphibian study going on in Tupper Lake, and relevant to other studies the APA should be requiring of applicants elsewhere in the Adirondack Park.

Ms. Tooher asked Dr. Klemens (June 7, 2011, pg.3184, lines 5-22 of the ACR hearing record): “So if you were trying to do a full evaluation of amphibian life on the property, how extensive a timeframe would you need?” He replied: “I think given the size of the property if you had a team of biologists, you probably could get the amphibians wrapped up in one or two seasons. It’s a matter of getting enough people on the ground. It’s pretty labor intensive, but you could use other techniques and really concerted. You could get a really clear picture of a lot of the fauna in about a two-year study of this property. But even a one year would give an awful lot of information. I mean look what I got in a few hours.”

Dr. Michael Klemens wrote in his prefiled testimony, “it is not in the lead agency’s responsibility, nor is it in the public’s interest to condition a defective and data-deficient application in an attempt to make it whole. Rather, the application should be denied without prejudice and the applicant provided with specific directives on what information is missing, and in the manner that it should be collected and submitted with a de novo application to be reconsidered” (page 19, Klemens prefiled testimony).
Paul Van Cott cross-examined Dr. Klemens on June 7 (pages 3141-3142, lines 5-24, and 1-7, ACR hearing record).

Mr. Van Cott:” If the Adirondack Park Agency were to approve the project as proposed, do you have any thoughts about studies and/or mitigative measures that the Agency might consider employing after the fact relative to this project?”

Dr. Klemens replied: “Well, as I’ve testified before and I’ll reiterate again, I mean as you don’t know the critical areas on the site, it’s very hard to approve something and then go out and discover that what you’ve approved is right in the middle of — for example, of amphibian pathways. So the proper prudent way to design the site such as this is to understand the biological resources, beyond the amphibians, all the biological resources where the areas of use are and then design a development that protects that interconnected ecological balance on the site by avoiding. It’s sort of going in backward in a sense. And also if you approve something, you may have to end up redoing half of it based on the biology if not more of it. It just isn’t a prudent way to go about designing a development of any kind, especially a development of this size, without any biological information. You really have to do that first.”
Dr. Klemens was asked by Mr. Plumley (April 27, pgs. 1188-1189, lines 9-24 and 1-15) if conditions should be attached to a permit that would require natural resource assessments to be made after the fact of permit issuance.

Dr. Klemens replied: “So my advice and the advice of attorneys that I’ve worked with — again not here, but further downstate — has been that it’s really not an agency’s obligation — they’re not really serving the public interest to condition a defective application to make it whole. And it’s really kinder to all those involved is rather to deny the application without prejudice and give really clear instruction. And that gets to the other thing — clear instruction to the applicant – about the kind of studies and information, because in the applicant’s perspective, they don’t get a lot of guidance often at the beginning. So that’s the advice I give my municipal clients, the towns I work for is that you can’t make a poor application correct through conditions, but you can deny it without prejudice, and you can provide very, very clear guidelines in all fairness to the developer or the applicant on the kind of studies that are needed to remedy it, and then we hear it again without prejudice.”

Mr. Ulasewicz asked Dr. Klemens on June 7 (pgs 3176-3177, lines 7-23, hearing record): “are you familiar with any fish- and wildlife-friendly construction techniques that might be used to help mitigate wildlife such as the amphibians that you’ve discovered on these roads?”

Dr. Klemens replied: “Well, the first step toward any sort of thought process there is avoidance. You have no information to do any avoidance, so the first — so before I would say yes you can create mitigation, but mitigation comes after avoidance which is based on information, then minimization and then finally mitigation. So, again, yes, you can mitigate certain impacts but one of the primary ways to mitigate the impact is to avoid certain areas. Absent information of where these animals are, the most important part of — is the avoidance part you really can’t do. And that sort of speaks to, I think, when Mr. Van Cott was asking me also about post — post-development studies. The first step is avoidance.”


Spotted Salamander, Photo © Dave Gibson

In reply to a question about ecological disruption from the project asked by Ms. Tooher, Dr. Klemens replied (pgs. 1067-68, lines 15-24, 1-2): “There are large zones of influence on wildlife which will be disrupted by the project. People look at wildlife. They think wildlife moves in corridors. Wildlife moves across the landscape almost like sheet flow of water. There’s movement all through the landscape. And that continues for some species, less effectively in a logged landscape, but it continues, and there’s recovery. Once you put on a hard landscape of roads, development, and other amenities, you fragment that sheet flow of wildlife and organisms across the landscape.”

Dr. Klemens continued: “I would anticipate based on my rapid amphibian assessment that there would be at least fifteen species of amphibians breeding on the site. For their small size, amphibians pack an ecological wallop because they control so much of the energy transfer in and out of ecosystems. Amphibians are bi-phasic, meaning that they breed in vernal pools and move to uplands the rest of the year. Wetland protection alone will not protect these species. The habitats of these animals are linked to uplands.”

Dr. Klemens was asked whether the existing ACR design constituted a satisfactory model for development in RM where the law mandates protection of “delicate physical and biological resources.” He answered, “no” (Klemens prefiled testimony, pgs 6-7). The design “completely ignores the interdependency between wetlands and surrounding uplands that most wildlife requires. 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 hibernation for the remaining eleven months of the year? How could such an approach be considered protective of the delicate physical and biological resources?”

Dr. Klemens supplemental testimony (Exhibit 208) concludes: “A comprehensive amphibian study would provide much additional information and would enable prioritization of areas essential for amphibian survival. This is especially important as amphibians form a huge biomass component of the site, and have complex habitat utilization which spans both wetlands and non-wetland habitats. Certainly this speaks to the protection of the delicate ecological interconnections of the ACR site.”

Asked by Ms. Tooher about buffers that might protect amphibian habitats (April 27, pg. 1086, lines 4-24), Dr. Klemens replied: “The conservation strategy basically on those pools is to obviously leave the wetland intact, leave the first hundred feet, which is known as the vernal pool envelope, intact and then protect seventy-five percent of what’s called the critical upland habitat zone. That is the zone that is one hundred to seven hundred and fifty feet from the pool where ninety-five percent of the population of amphibians resides. You could develop up to twenty-five percent of that…There’s a whole methodology that you can develop sensitively using this approach in these areas. It’s not a prohibition against development, but it’s an intelligent application of where to develop and how to use these best development practices.”

Building upon Dr. Klemens’ testimony, APA expert witness and resource analyst Dan Spada produced a map (Exhibit 244) of potential amphibian upland habitats extending 750 feet out from mapped wetlands and potential vernal pools west and just east of Read Road within the Resource Management area. Mr. Van Cott asked Mr. Spada about the significance of areas 100 and 750 out from the edge of identified wetlands and breeding areas for amphibians.

Spada answered (June 23, page 4048, lines 7-18): “These zones, the one hundred foot buffer and the seven hundred fifty foot buffer comport with the literature out there that describes the critical habitat area for amphibians. It doesn’t include all of the habitat that amphibians may occupy. It includes critical habitat for a bulk of amphibians. And so this helps to analyze the impacts to those organisms which spend at least a portion of their life cycle — and a critical portion of their life cycle. It goes back to wetland protection, protecting the value and function of fresh water wetlands.”

Mr. Van Cott then asked Mr. Spada to identify whether any of the Great Camp lots and their development envelopes lay within that seven hundred and fifty foot buffer within resource management. Mr. Spada answered (June 23, page 4047, lines 1-16): “Yes, I can do that. Lot Three, Lot Twelve, Lot Seven, Lot Thirteen, Lot Fourteen, Lot Fifteen, Lot Twenty, Lot Twenty-one, Lot Nineteen, Twenty-eight, Lot Twenty-nine, Lot Thirty, Lot Thirty-one, and Lot F. In addition, the west face expansion. Q. In its entirety? A. No. The southwesterly portion of west face expansion. Yeah, all but four units.”

In all, Mr. Spada easily identified about 44 Great Camp and West Face Expansion lots in Resource Management which would encroach upon and both directly and indirectly impact the upland habitats of sensitive wetland species of wildlife which spend the bulk of the year in upland habitats adjacent to their breeding ponds. “It includes critical habitat for a bulk of amphibians,” Spada said. The map “helps to analyze the impact,” he noted.

 


Posted 05/29/13
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10/16/13 Land Sought For Mining Company Is Hardly Ordinary  read more >
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07/30/13 The Economic Value of Protected Land 
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06/11/13 Will Andrew Cuomo’s APA Picks Protect Natural Resources? read more >
05/27/13 Big Tupper Resort Amphibian Study: Science After The Fact read more >
05/01/13 The APA Says Science Can Wait 
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04/02/13 We Should Protect Vulnerable Vernal Pools 
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03/18/13 Benefits of Conservation Development 
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02/13/13 General Permit Fails to Address Today’s Forest Challenges read more >
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