Current IssuesThe Adirondack Park Agency building and sign

By David Gibson, Managing Partner, Adirondack Wild

Raising Standards at the Adirondack Park Agency

Adirondack Park Agency State Land Master Plan document coverBy David Gibson, Managing Partner, Adirondack Wild

A few items captured my attention about the November 2022 meeting of the Adirondack Park Agency.

First are the public privilege comments of Park resident and retired APA deputy counsel Barbara Rottier. She spoke to the Agency of prior, 1996 written decisions of the APA staff that would shed light on the agency’s current deliberations about whether there has been a material increase in the mileage of roads and snowmobile trails open to motorized use by the public in wild forest areas since 1972.

In the mid-1990s significant efforts were underway to provide new access to the Forest Preserve for persons with disabilities without violating the State Land Master Plan’s restraints on overall public motorized use in Wild Forest areas. APA staff helped the DEC in its decisions about how and where that access should take place and reminded DEC that Wild Forest guidelines on motorized uses in the State Land Master Plan still applied because the impacts of motorized uses upon the constitutionally protected, wild forest environment would result whether those routes were driven by a person with a disability or not. The paramount priority of the State Land Master Plan, part of Executive Law, is the protection and preservation of the natural resources on the Forest Preserve.

Contrary to how staff appear to view it today, the 1996 written communication from the APA to the DEC was not mere staff opinion. It was a fully vetted and approved staff decision, as Rottier stated in her public comment. She should know. She was there. I recall that, also, to be true because my organization, the Association for the Protection of the Adirondacks, was a close observer even then of the APA meetings and, at the same time, was drawn into several outstanding, related issues at DEC: the important DEC policy authorizing more access for certified persons with disabilities was one. Stopping the DEC from issuing numerous temporary revocable permits (TRP) to itself and to able-bodied members of the public so that they could drive into all sorts of places in Wild Forest as well as in Wilderness where they had no legal right to travel at all was another. The Association, Adirondack Council and others sought leave from the federal court to sue the DEC for its widespread abuse of TRPs for motorized access to and alteration of the Forest Preserve but were prohibited by that court from proceeding. TRP “reforms” subjecting these permits to greater scrutiny and public disclosure were eventually negotiated with the DEC.

In 1998, an Americans with Disabilities Act lawsuit was filed by Ted Galusha et. al. in Federal Court in Albany where a federal judge perceived blatant unfairness resulting from the DEC’s frequent TRP issuance to the able bodied, not to persons with disabilities. The judge issued rulings that eventually forced a legal settlement in 2001. My organization was part of that challenging period and that settlement. All of us involved relied at the time upon the aforementioned APA written correspondence with the DEC with respect to the State Land Master Plan’s intent and legal effect. At the time those APA memos were deemed authoritative and decisive with respect to the Master Plan which is, after all, the Agency’s responsibility.

Ms. Rottier’s further comment was that “the current Board should be advised by current staff of this history. The Agency has the duty and authority to interpret the SLMP. It can make a different determination than previously made, but it should evaluate the relevant issues with all the relevant information at its disposal.”

I fully agree, decry the loss of institutional memory at the APA, and note that APA staff have denied my organization, Adirondack Wild, access via the freedom of information act to that 1996 APA correspondence with DEC because, APA staff counsel Chris Cooper wrote in his October 2022 denial of our appeal, that old correspondence was “draft, non-final policies which may be properly withheld because they are not the final policy governing the agency’s actions.”

I think not, so I was glad that a former Agency senior staff member confirmed that the correspondence we sought via FOIL represented fully vetted decisions by the then leadership of the APA staff. The bottom line is that all past Agency correspondence to DEC about Wild Forest guideline No. 4 of the State Land Master Plan should be given to Agency decision-makers immediately so that at their next meeting they can, in Ms. Rottier’s words, “evaluate the relevant issues with all the relevant information at their disposal.” If that does not happen, it just raises suspicion that APA appears to have something to hide from their members and from the public.

The second item that caught my attention at the November meeting was a comment by Agency associate counsel, Sarah Reynolds, that: “we are constantly updating our standards to meet the latest environmental science.” I was happy to hear that, and want it to be true.

Challenged by a letter to the APA from Protect the Adirondacks !, Ms. Reynolds went on to say that meeting the regulatory requirements of the 2019 State Climate Act was indeed on the APA staff agenda and that the Agency’s legal requirements to protect the Park’s natural and ecological resources were broad enough to cover the Climate Act’s charge that all state agencies take steps to ensure that permit decisions are consistent with the attainment of the statewide greenhouse gas emission limits. When pressed by APA Member Zoe Smith if staff were explicitly looking at this question, APA counsel Mr. Cooper replied that yes, the Agency staff are researching all of the Climate Act requirements with respect to how it may impact Agency decisions. Hopefully, the APA legal team will be consulting with its staff science team to ensure that standards are updated to meet the Climate Act’s science based requirements. And hopefully those updates will be publicly announced and available for comment.

In other cases, I don’t feel the APA can make a strong case that it is constantly updating its standards to meet the latest environmental science. Later in the November meeting APA and DEC staff reported on the considerations their agencies account for with respect to roads open to public motorized uses on Wild Forest portions of the Forest Preserve. They listed many legitimate considerations, from the quality of the recreational experience of driving on the Forest Preserve to the difficulties of maintaining the roads. Conspicuously absent, however, was any mention of the ecological impacts to wildlife of road development and levels of motorized uses. Ecological impacts of opening or expanding road use in wild forest areas were not raised at all despite all of the information and documentation of impacts that APA’s Resource Analysis and Scientific Services staff, and private scientists like Dr. Michale Glennon have presented to the agency in past years.

Then I recalled April 2022, and how the APA permitted the application of a new herbicide into two bays in Lake George despite hearing from local scientists on the lake that insufficient aquatic science was being applied to render a decision of no undue adverse impact to the lake. APA could have learned more from those concerned limnologists on Lake George during a public hearing, but APA refused to call one. APA simply issued the permit with conditions. That did not appear to me to be an example of APA constantly wanting to update its standards to meet the latest science. Public hearings for large, complex, controversial projects are important opportunities for the Agency to display not only its own scientific research and knowledge but to listen to sworn testimony from outside expert witnesses about actual or potential adverse impacts. Unfortunately, APA has not held an adjudicatory hearing since the ACR subdivision of 2011.

I could also mention that APA staff in 2021 modified a 1988 Agency permit to allow a highly engineered septic system to be built just 100 feet from a sensitive Class 2 wetland in the northern part of Upper Saranac Lake. It did so without determining if the wetland boundaries had changed since 1988, and without taking into account an analysis of potential development at this location in relation to ecological communities and wetland values and functions, an analysis performed by the Agency’s former resource and scientific services director. One could also note that in 2020 APA permitted the expansion of the private marina on Lower Saranac Lake without knowing, or wanting to know how that marina, combined with other boat launch expansions on the lake, would cumulatively impact the lake’s carrying capacity.

APA works hard at its job. Faced with a highly complex, 50-year-old statute and legal time clocks, it remains the smallest agency in state government. It is understaffed and in need of strong leaders independent of the much larger DEC. Its planning, science, and state land/State Land Master Plan oversight functions are particularly understaffed. Many push hard every year to try to make the APA stronger and more effective. At the same time, when the associate counsel publicly asserts that it is constantly raising standards to meet the best available science, one needs to examine the record and take such assurances with a grain of salt. Are the Agency’s scientists also reaching that conclusion? On the question of constantly updating standards to meet the science, next time let’s hear from them, unscripted.