So Much for Interagency Coordination

So Much for Interagency Coordination

By Dave Gibson

Adirondack Park Agency rules about project review procedures state, in part, that

“The agency may enter into written agreements with other State agencies to enhance the exchange of information and to establish coordinated pre-application, application and review procedures…Any such agreements may provide that no application to the agency shall be deemed complete until all other State agencies, that are party to the agreement and have review and permitting jurisdiction over the same project site have, in the opinion of each, received sufficient application materials that they have, respectively, deemed the applications made to them to be complete.

In brief, APA and its sister agency across the Ray Brook parking lot, NYS DEC, have long had the legal authority to agree to jointly coordinate when it comes to the sufficiency of application information and joint, coordinated review of Park development projects.

There was no greater opportunity for APA and DEC to closely coordinate than the 92-slip commercial marina project on Lower Fish Creek Pond, just permitted in May by the APA. That opportunity might have been helpful to both the applicant and concerned neighbors on the Pond. The opportunity was missed.

Both APA and DEC have review authority over this development. DEC’s comes from Article 15 of the Environmental Conservation Law, with regulations pertaining to the use and protection of waters anywhere in the state and, in particular, pertaining to waterbody docks, platforms and moorings.

APA’s jurisdiction comes from the Adirondack Park Agency Act whereby an existing commercial business wishing to expand by 25% or more requires a permit. In addition, APA is legally bound to apply its 37 development considerations in judging a project to have no undue adverse impacts on the natural resources of the Park.

Despite their joint interest in and jurisdiction over the same shoreline project, and the actual and potential impacts on natural resources and on the capacity of the narrow channel to accommodate more and larger boats, APA and DEC went through separate determinations of application completeness and compliance with their respective laws. Separate reviews cost the applicant more, of course, and forced over 100 concerned project neighbors to track and follow separate state agency procedures and deadlines to register comments.

Both agencies failed to coordinate and to hold public hearings. In APA’s case, the project met all the criteria for such a hearing, but APA has steadfastly refused to hold hearings on complex projects since the ACR project in 2011, frequently labeling public hearings as “trials” no one should ever have go through. That label is an agency staff invention of convenience, ahistorical (APA held 150 public hearings prior to 2012), contrary to Agency law and regulation, and completely unfair to APA staff, park residents and stakeholders. But I digress.

As of today and to my knowledge, DEC still has not acted on the marina’s application, twice deeming that application incomplete. APA also deemed the marina application incomplete three times, however it then changed its mind this spring, 2024.

Did extensive public comments have much impact on the APA’s final permit determination for the new marina in May? Not much, if any. Except for rote recitation of law, routine permit conditions, and slight movement of one of the docks to avoid wetlands, APA essentially rubber stamped what the applicant wanted. For many years now, APA has devolved into a permit writing agency, not the deliberative park planning body with high standards of project review established in law.

That notwithstanding, let me focus on similar questions each agency asked and, on the completeness and rigor of the answers received from the applicant.

Both APA and DEC were interested in existing conditions versus proposed. What will be the change, and impacts of the change? They both wanted information about the number and size of boats that were previously rented at Hickok’s boat livery in order to compare that with the proposal for 92 boats of all sizes, including many motorboats and 22–36-foot pontoon craft. In their comments, residents familiar with the lake questioned the applicant’s claim that the boat livery commonly berthed 71 boats of all sizes

In August 2023, DEC wrote the applicant: “Per Use and Protection of Waters…one of the factors the DEC considers is the safe commercial and recreational use of water resources. In order to evaluate this issue please provide the following:

• The application materials indicate that there is a current total capacity of 71 boats. However, the layout shown does not seem to reflect actual use. Please provide the approximate number of boats that have been docked at your facility each year for the past five years, including how you calculated these numbers.

• Provide a boat traffic assessment discussing the additional boat traffic that will result from expansion of this existing marina. The assessment should quantify the number of additional boats in relation to existing use of the lake with emphasis on the increase in boat traffic to and from the main body of the lake through the Fish Creek channel. The assessment should also discuss how the reconfiguration of the docks at the marina will affect boat traffic in the channel and whether that will affect safe navigation for other boaters.

In response, the applicant wrote to DEC that records of boats berthed at the former Hickok’s boat livery were not available and, furthermore, that the approximate number of boats docked there over the past five years was not a good estimate of past use.

DEC did not accept that answer, and other answers. In January of this year DEC wrote back: “DEC again requests the rental usage history. While there may be a historical capacity of 71 boats, please demonstrate that the facility has been utilized at that capacity in the last five years. It’s important to have a baseline of the recent usage to be able to evaluate the possible impacts of the expansion.” I do not yet know how the applicant responded to that.

DEC also critiqued the applicant’s boat traffic study, stating that “16% does not appear to be an accurate estimate of peak usage of rental boats. The peak use factor should be adjusted to have a higher percentage of use of rental boats.” DEC also questioned the maximum boat length asserted in the applicant’s report, the arrival and departure rate of rental boats, and asked the applicant to better account for the navigable width of the pond’s channel, the depth of the channel, and the channel width as boats moving in opposite directions pass each other.

So far, it appears DEC has taken its review responsibilities seriously, asked critical questions about the cumulative impacts of the marina, and expected serious answers in return. To my knowledge, the DEC application remains incomplete.

As for the APA, it also asked the applicant to provide the number of motorboats available for rental now and indicate if that number will increase under this application, in other words what will be the change? The applicant responded: “the number of rental boats is driven by market demand. Therefore, there is not a set number that can be provided.” To my knowledge, APA staff considered that answer acceptable and did not follow it up.

However, I was hopeful when, prior to the vote, APA Chair John Ernst began a needed line of inquiry. He asked his staff about the difference between existing conditions at the boat livery versus what was being proposed. Inquiring about neighbors’ contention that most of the boat’s at the former boat livery were small, canoes and rowboats, Ernst asked: “can we compare the number of big power boats before, and proposed? I am looking for an apples-to-apples comparison.”

It was a good question, but Ernst never got a clear answer, and seemed OK with that. Staff told Chair Ernst that there was no documentation of prior conditions because the applicant provided no old boat rental records. Old Google Earth images were taken before boating season, so no boats showed in those. The applicant’s site plan of existing conditions simply showed a sketch of 71 boats of any and all shapes and sizes occupying boat slips. That applicant sketch was the basis for the APA’s judgement about existing conditions.

Many old photos of the former boat livery exist and were provided to APA showing what was docked on the old slips (very few motorboats) and what was not, but APA staff never presented those to the members prior to their vote to approve.

When it came to the Boat Traffic Study of the applicant, the Agency’s staff simply summarized that study to the voting members to be factual and accurate. To my memory, the critique of the boat traffic study by the DEC, and the additional information requested by the DEC to clarify and explain the boat traffic study were not raised by APA staff or members. So much for coordination.

In sum: in issuing the marina a permit last month APA rejected a hearing, failed to coordinate with DEC, accepted the applicant’s word about pre-existing conditions and projected boat traffic effects, and gave their voting members less than complete answers. Many long-time residents disputed the applicant’s pre-existing condition sketch. Their information was, mostly, ignored. Meanwhile, both agencies dismissed out of hand that it was time for a the legally required (since 2019) carrying capacity study of the cumulative impacts of recreational uses on the Saranac Lakes Wild Forest.

The pattern of a decline in project review standards at APA continues due to a lack of leadership at the Agency devoted to carrying out legislated responsibilities to protect the Park’s natural resources. The APA’s permit review again disrespected dozens of local residents who raised critical questions and who counted on APA to critically address them. This is a continuing pattern at APA. The same conclusions about a lack of review rigor could be reached for the White Lake granite quarry project approved in 2022-23.

Photo at top: Lower Fish Creek Pond. Photo by David Gibson.