By Dave Gibson, Managing Partner Adirondack Wild.
Is APA review the equivalent of an Environmental Impact Statement? No.
Over the course of time, the Adirondack Park Agency’s permit practice has drifted too far away from what the 1973 Agency Act and the State Environmental Quality Review Act require.
The State Environmental Quality Review Act (SEQR) requires any State or local agency that undertakes, funds, or approves a project to evaluate the actual or potential environmental impacts of the project prior to taking final action. SEQRA clearly sets forth the state’s policy that adverse environmental impacts of proposed actions be fully considered and either minimized or avoided.
An agency must identify all areas of relevant environmental concern with respect to the project, take a hard look at them, and provide a reasoned elaboration for its determination as to whether the action may have a significant adverse impact on the environment. The agency must require preparation of an Environmental Impact Statement (EIS) if the proposed action may have any significant environmental impacts.
APA Review is No Longer the Equivalent of an EIS
In its review of major projects, APA is exempt from the need to prepare an EIS because the Legislature believed in 1973 that APA would be performing a comparable environmental review. In other words, the State Legislature assumed that review under the APA Act would be the functional equivalent of an EIS under SEQR and it was therefore unnecessary to have proposed projects subject to both laws. That assumption is no longer valid.
Implementation of the APA Act over the past decade has become less comprehensive and rigorous than what SEQRA demands. As a result, many projects in the Adirondack Park are now subjected to less environmental scrutiny than similar projects in other areas of the state, undermining the heightened protection the Park’s resources are supposed to enjoy.
Here is a simplified table showing how the current APA project review differs from SEQR.
|Environmental Review steps||SEQR||APA|
|Environmental Assessment Required?||Yes||Yes|
|Determination of Environmental Impacts?||Yes||Yes|
|If Impacts deemed significant, is an EIS required?||Yes||No|
|If impact deemed significant, is the scope of impacts evaluated in public?||Yes||No. Scope of impacts selected by staff|
|Public hearings held?||Yes||Rarely. None in over 10 yrs.|
|Alternative ways to develop with no or fewer impacts always analyzed in writing and in public?||Yes||Not always.|
No More Findings of Fact: In recent years, APA staff, with the concurrence of the full Agency, have substituted a Permit Writing Form for a substantive permit order with “Findings of Fact.” A quick review of past agency permits shows that Findings of Fact were included in all major permits that APA issued from 2015-2019. For the last several years, including this winter, findings of fact have disappeared from Agency permits. Permit findings have been separated from the permit itself and are instead simplified within a separate document called the “Permit Writing Form.” That form reduces the project history, background, site description, and all review of pertinent development considerations – from water resources, to wetlands, to wildlife habitats, to project impacts. – to a series of binary choices, meaning Yes/No check off boxes with occasional, highly abbreviated staff comments in small typeface.
Instead of reading in the permit itself how staff reached a conclusion, using plain English, complete sentences and analytical judgements, APA members and the public are given a separate list of checked off boxes. The intent of these check offs may be to suggest that there is nothing substantive to see, no major impacts, and no cause for concern.
A permit condition must be linked to an identified impact. Since 2020 no impacts are ever identified in the major permits issued by the APA. Based on a reading of the permit, it is difficult in the extreme to tell whether the draft conditions are sufficient to address project impacts and how the applicable development considerations have been applied to render a determination of no undue adverse impact. APA members, the decision makers, are forced to judge the legality and efficacy of permit conditions for major projects when the nexus between conditions and the harm they seek to address has been severed.
For Example: Agency watchdogs can compare the Barile Family subdivision permit in North Elba issued by APA in 2017 and the Woodward Lake subdivision permit the agency issued in 2021. The 2017 Barile permit contained substantive Findings of Fact devoted to site conditions, application of the development considerations, and project impact avoidance including design and layout of the new housing and the preserving of ecological connectivity on and off site.
By contrast, the 2021 Woodward Lake permit is devoid of Findings of Fact. It contains permit conditions bearing no expressed, analytical, rational relationship to two years of agency staff list of actual or projected project impacts, such as wildlife movements, ecological connectivity and the parcelization of the upland forest, among others. By switching from an expansive findings statement to a simplified yes/no form, agency staff issues and concerns about project impacts are obscured.
Transparency? Governor Kathy Hochul has demanded transparency in state government. When APA’s project impacts and findings are obscured and separated from the permits it issues, that is not good government transparency. It’s high time that the new APA team in Ray Brook once again articulate the “Findings of Fact” and “Project Impacts” within the actual permit documents, and not in a separate, opaque, binary, yes/no check off form. Then, APA members can once again properly judge whether they can legally reach a conclusion of No Undue Adverse Impact to the resources of the Adirondack Park.
Photo at top: The author at a public comment period at the APA, pre COVID-19