Wednesday, July 11, 2012

Dave Gibson: Authority to Protect the Backcountry

I write in praise of the scope and content of Adirondack Explorer’s current lead article “The Future of Open Space” by Phil Brown, but wish to add emphasis to one very important aspect. The article rightly notes that “it is vital to have an APA staff and board willing to use their authority to protect the backcountry.”

Attempts to strengthen or change APA laws and regulations that protect the open spaces of the park are for naught if APA lacks the will to use the legal tools available to it. That was the case with Adirondack Club and Resort (ACR), where APA had plenty of legal authority, but lacked the courage to deny ACR, greatly modify the project, or reopen the hearing to obtain evidence missing in the hearing.

In 2007, the Agency placed a senior staff member in charge of the ACR project, Mr. Sengenberger, who made his attitude plain to those of us participating in the prehearing meetings: ACR’s design which spread more than three dozen great camps across 4,000 acres of Resource Management was nothing out of the ordinary, or precedent-setting. While I always respected Mr. Sengenberger, I believe his view was in the minority among the staff. Nonetheless it was Mr. Sengenberger who the Agency brought out of retirement to be their leading expert at the hearing. He testified that the law which allows residential development in Resource Management to take place on substantial acreages or in small clusters was not a mandate, just one of many considerations to take into account. Furthermore, he wrote that “the most important element in designing residential subdivisions in Resource Management…is finding suitable locations for proposed on-site wastewater treatment systems.”

Judging from evidence unearthed during the hearing, other APA staff strongly disagreed with this reductionist attitude towards the APA’s law, where any project can pass muster so long as it is environmentally engineered. Three of these staff (all are now retired from the Agency) – Mr. Outcalt, Mr. Quinn and Ms. Halasz – wrote memoranda to Mr. Sengenberger in early 2005 when the ACR proposal was first being studied, collectively making these points:

1. The law’s language which states that “Resource Management areas will allow for residential development on substantial acreages or in small clusters on carefully selected and well designed sites” was a legal mandate (not just guidance as Sengenberger testified) but required careful policy development approved by the commissioners (which was never done);

2. Forest and habitat fragmentation which results from carving up Resource Management into many lots should be avoided through clustering which overlaps rather than spreads out housing impacts on wildlife habitats (APA admitted there was no clustering in the project);

3. Alternatives to large subdivision on RM must always be seriously studied and considered and in fact a study of concentrating all of the ACR development around the ski center should be developed and compared to the proposed project.

This, of course, never happened, corroborated by APA’s chief scientist, Mr. Spada, whose written testimony states that the process of identifying alternatives was “short-circuited” by the applicant, and that “there has not been an organized and rational discussion of reasonable, potential alternatives.”

4. Under the law, open space in the Park should be preserved and protected for its own sake, not only if the open space in question has important natural resources within it. I quote from one of these staff memos: “The fact that much of the Park’s open space is constitutionally protected public forest preserve land does not make protection of private open space any less important, especially in Rural Use and Resource Management where it is statutorily required to be preserved and protected” (emphasis mine).

Phil Brown’s article also notes that in the case of ACR the Agency ignored the many conditions on prior permits it issued in the 1980s and 90s to build in clusters to protect open space. The article cites three permits – at Oven Mountain, Veterans Mountain (Camp) and Butler Lake. Adirondack Wild: Friends of the Forest Preserve can cite nine such permits, some issued within the past ten years and several signed by Mr. Sengenberger as Deputy Director of Regulatory Affairs. While hardly perfect, by way of contrast with ACR at least these permits attempted to adhere to the purposes, policies and objectives of Resource Management and Rural Use. The nine restricted residential development to a relatively small area of the project site and maintained the vast majority of the acreage as undeveloped forest and open space, as the statute commands. These prior permits were:

• Patten Corporation (APA 87-340A)
• Butler Lake (APA 89-312)
• Oven Mountain Estates (APA 91-110)
• Veterans Mountain Camp (APA 92)
• Whitney Park (APA 96-138)
• Diamond Sportsmens’ Club (APA 2001-217)
• Adirondack League Club (APA 2005-172)
• Brandreth Park Association (APA 2007-117)
• Persek project (APA 2001-76)

The latter permit, Persek, was presented by APA staff in a recommendation to take the ACR project to public hearing (2007) as a model for the ACR to follow in terms of conservation design of development, impact avoidance, and protection of large, contiguous tracts in Resource Management lands.

Photo courtesy Wikipedia.

Dave Gibson

Dave Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

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28 Responses

  1. Judy Martin says:

    Sengenberger had a much different attitude about development when a zoneing variance was requested near his home here in Saranac Lake.

    Well-loved. Like or Dislike: Thumb up 7 Thumb down 0

  2. Dave Mason says:

    Some combination of TDRs and easements should be sufficient for RM land protection.

    In their current version TDRs can only move around building rights in the same Town, a good thing, otherwise you’re messing with each town’s tax base and potentially moving around large numbers of home building rights.

    Easements already cover some 830,000 acres, about 14% of the Park. Probably 90% of these are industrial forest. Home building rights are extinguished under easements. So private land, not under easements is down around 40% now. If TDRs were equally successful, that would leave only 26% of the region potentially buildable. And TDRs could be acquired solely for the purpose of extinguishing them.

    Here is a question: Why is a house on, say, 250 acres of RM land, that is used 8 weeks a year, such a disaster compared with logging which creates roads all over and tears up the whole 250 acres? Why is logging preferred to a lightly used house that takes up an acre or so? I’m not raising this to be a wise guy, I’m hoping someone has a good technical answer. Anyone?

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    • Dave Gibson Dave Gibson says:

      Dave,

      As you know, the permitted ACR subdivisions are not about one house on 250 acres in RM, but about dozens of homes on RM on 15-acre-1100 acre lots,(most are in the 25-acre range) where instead of overlapping the impacts of the homes/guest buildings/driveways the design spreads the impacts out. That’s why experts M. Glennon, H. Kretser and M. Klemens testified about the significant house distance effect of the ACR design that got approval. A single house on 250 acres may or may not have much impact depending on its location and the context of the land and land use around it. Logging on an otherwise undeveloped and formerly unlogged landscape may have significant impacts due primarily, as you suggest, to the new logging roads, but compared with a poorly designed housing subdivision those impacts are temporary and do not permanently impair ecological functioning and wildlife movements. Just shoot me an email if you would like to read the important ACR testimony on the difference between a logged backcountry and a new residential subdivision from M. Glennon and H. Kretser, and APA staff member D. Spada.

      Like or Dislike this comment: Thumb up 4 Thumb down 1

  3. Solidago says:

    Dave, are these all permits where the applicant presented a sprawling design, and the APA forced them cluster it? If you’re trying to make the case that the current APA lacks the will to prevent something like ACR, what matters is the degree of change between the initial plan and the one that got the permit.

    If clustering was proposed in the applicant’s initial plan, you can’t say that the APA made them cluster it. These might be examples of the types of development you want to see, but not shed much light on the APA’s will and/or authority.

    I’d much rather see the APA working with much less ambiguous regulations set forth by the legislature, rather than relying on the attitudes and interpretation of the latest crop of APA officials and staffers. Things are always open to interpretation, but I think the lesson from ACR seems to be that current law leaves too much to be interpreted.

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    • Paul says:

      I am pretty sure that for the Brandeth project they wanted them all (43 new SFD for a total of 117 on 440 acres) to be located at the end of the lake. This is also different from the ACR project that chose NOT to develop any of their waterfront property on the Raquette river, a point I never hear mentioned. The Brandeth project leaves 95% of their land undeveloped. What is the percentage undeveloped for the ACR site?

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  4. Paul says:

    When you look at the whole on balance this doesn’t seem so drastic to me. Dave (G) points out a number of projects that followed the stricter interpretation of the law. Dave Mason reminds us of the vast tracts of private land recently made off limits to development. If the spirit of the all these laws is to balance people living here and the environment being protected it seems like a reasonable interpretation of the facts is that things are not as bad as some think?

    Also, as far as the preservation of “open space” on private land. When I travel around the lakes in the Adirondacks I much prefer the areas where the development is spread out to the places where the structures are jammed (clustered) together. I guess that it may be more aesthetically pleasing but not as environmentally sound? Is that really true? With septic systems and the like isn’t it better to spread things out?

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  5. Mike S says:

    Dave, many good points but I’m not convinced the APA lacked the will to make the ACR follow the regs. I think Cuomo looked at it as a way for him to curry favor with voters when he runs for higher office. While he never publicly came out in support of the ACR it obvious he pushed it through the process. If it ever works out he can take credit for it and if it flops(99.9% certainty) he can disavow any connection to it.

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    • Paul says:

      Was there some “private” support that the Governor expressed to the agency that you have information about? Or is this just wild speculation?

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  6. Dave Mason says:

    Thanks Dave Gibson—let me try my question again w/o linking it to ACR.

    Consider a generic RM parcel of 1000 acres that gets sold as four lots, 250 acres each. They are built, each home site using two acres or so plus dirt road access. The homes are likely nearer the edge of the property than the center. They are used 8 weeks a year, other wise left quiet. The owners maintain their light road, but never log the place nor subdivide it. The homes are largely unseen, unheard, unoccupied and the dirt roads unused. Of the total 1000 acres, roughly 975 would never be disturbed.

    Technically, from an environmental science perspective, why is this NOT preferred to repeated industrial logging? Industrial logging and land mgt never stops, although the logging cycles can be decades, roads are often maintained. If the scenario involved 4000 acres instead of 400 would the response be different and if so, why? I can guess that logging it is better for jobs, but which is better environmentally?

    I take pride in trying to understand various sides of this discussion so, again, I not trying to come off as a jerk, but I can’t answer this question well, and I should be able to. Has any science been conducted comparing these two scenarios? Can you point me to it? I imagine the result would be different for different criteria – perhaps logging is better for wildlife and not logging is better for watersheds, but I’m just dreaming here, no facts in hand.

    Comments?

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    • Paul says:

      Dave, I think the experiment has been done. Look at the Fynch Pruyn lands. Logged repeatedly for about 150 years, basically no ecological impact in the long-term. But I agree that these small footprints you describe may also not have any real impact.

      Like or Dislike this comment: Thumb up 1 Thumb down 1

    • Dave Gibson Dave Gibson says:

      Dave,

      Interesting experiment, if you can control it. Actual outcomes from your scenario are highly dependent on conditions on the land and circumstances it is hard to comment. Rarely are land use choices presented so starkly – “industrial” logging forever, or just four homes used eight weeks per year forever. Context is very important. Just FYI, here is what Dr. Michale Glennon wrote in her expert testimony at ACR which won’t satisfy, but may inform: …”the applicant argues that the proposed project area is already highly fragmented and therefore an analysis of fragmentation is not warranted. While I certainly agree that the lands on which the proposed development are to be built have been impacted by logging and dissected by roads, the landscape has the capacity to recover from such impacts and will achieve an older forest condition over time. It is logged, but very much still a forest. Research has shown a variety of impacts to wildlife as a result of logging, but generally much stronger impacts to wildlife as a result of
      residential development (Glennon and Porter 2005). Specifically with respect to logging on the scale and manner in which it is conducted in the Adirondacks, birds do not appear to be strongly negatively impacted in the same ways that they are by residential development (Glennon and Porter 2005, Jenkins 2008). The reason is primarily because logging is temporary and impacts move from stand to stand on the landscape depending
      on where current activities are occurring, with long periods of inactivity between active logging operations. Similarly, logging methods commonly used in the Adirondacks (primarily selective harvest or group selection) can and do much more readily mimic
      natural disturbances to which birds are adapted than does residential development, which does not mimic natural disturbance. Residential development is associated with
      permanent changes to the landscape which are rarely if ever reversed or removed including the paving of roads, the introduction of noise, light, and disturbance effects
      from human activity, and the effects of domestic animals, all of which are temporary or absent from logging but permanent in association with residential development. The
      Adirondack Park has demonstrated a tremendous capacity to recover a large degree of its original ecosystem integrity from the intensive clearing that took place in the park early in the last century. In contrast, residential development here and elsewhere represents a
      permanent change to the landscape, the effects of which can be mitigated by spatial arrangement of houses, but which ultimately are permanent impacts.”

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  7. Dave Mason says:

    Hmmm, so permanence is the dimension of it. Logging every 60 years, tearing up everything, vs a couple of small isolated, seldom used but permanent buildings. It’s a way to look at it certainly. Commercial timberland recovers after harvest, but then it is cut again; it isn’t like Forest Preserve since once it has recovered fully it is likely to be cut again.

    I wonder how one could structure a real scientific investigation into this? Certainly there are RM zones regularly logged. And there are RM areas with a few scattered seasonal homes that have been in place for an equally long time. And there are areas with both long term logging and long term camps on leases mixed together. Perhaps there is a Phd there for doing the science to compare the three, ecologically. ESF students take note!

    I often feel like we take all sorts of positions w/o much in the way of real science. We think we know a lot but, truth is, we don’t.

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    • Mightymike says:

      Selective harvesting is the worst kind, for the environment. Selective harvesting requires equipment to operate ever 10 or so years. It isn’t the sudden absence of trees that is bad for the ecosystem; trees grow back. It’s the loss and compaction of soil and the resulting impacts to water. I have seen many old logging roads and skid trails with nary a tree even though that hadn’t been used in decades. I think that in Dave Masons hypothetical, the residential use may have the least impact. You could argue that logging can have less impact by following best management practices, but having worked in the timber industry for over 10 years, clearly jobs aren’t always done in the best way.

      And pardon my skepticism, but I have a hard time having faith in Glennon’s objectivity.

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      • Judy Martin says:

        Why do are you skeptical of Dr Glennon’s scientific work? What about Dr Kretser? Have you found different results when you have tested their work or data? That is a very serious accusation of a scientist, especially ones with their credentials. They are probably the most respected conservation biologist on the East Coast, in regards to ex-urban development.

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        • Mightymike says:

          First, their 2005 report on exurban development was not primary research, so it’s easy to bias their conclusions by choosing sources that agree with their preconceived ideas. Second, as written in their report, their “work was much informed by conversations on exurban develepment …with Ray Curran, Peter Bauer…”. Need I say more. Thirdly, their report relied on research done outside of the Adirondacks. Fourth, I have never seen any research from Glennon comparing this type of development to intensive forest management, which is what she testified to. Finally, their second hand work on exurban development defined exurban as 5-40 ac., which is nowhere near the low density of the large great camp lots of ACR or Dav Masons hypothetical. I realize you ate fond of her, but you greatly exaggerate when saying the’s ” most respected”. Having barely a decade of work under her belt, with very little of it being primary research, and nothing groundbreaking…come on.

          I am skeptical of her objectivity because I sat near her husband and father at one of the APA meetings…clearly its a family affair.

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      • Snowshoe steve says:

        It’s called succession. A logging site goes through it. A persons home and associated structures do not. It’s common sense people. Farm the Forest. Don’t pave it!

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        • Mightymike says:

          I have seen plenty of ruins of old homesteads in the woods, that are forests again. I have also seen logging roads and landings that are decades old that are still scarred. The big question in my mind is are people free to develop their land as they choose, within the law or should they have to call up the APA and ask for predetermined plans for their property. It would save the landowner a bundle in engineering work. The APA does have to conclude that there is no impact on the environment, just that it’s not undue. That is very subjective and why their is a panel who majes that determination . To have them tell a landowner you must not have any lot over 5 acres ( a maximum acreage) is exactly the opposite of the law which outlines minimum acreage.

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    • Judy Martin says:

      There are many, many studies done and being done on it. All this was brought out in the adjudicatory hearing. The developers project design was very old school and nothing like the current standards for a green development.

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  8. Dave Mason says:

    In any event, I agree that easements which extinguish building rights, and TDRs which allow moving building rights around within a Town, both seem like good steps to take. On the surface, these are win/win propositions adding to protected open space while keeping the existing local economy intact. Easements have reached 830,000 acres of private land! That is a lot of open space, even in a Park of 6 million acres.

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    • Judy Martin says:

      D.Mason, your logic of a home vs logging is what would seem, well logical. However, that is not what the science behind develoments is showing. That is what was so frustrating,when Drs Klemmons, Kretzer and Glennon presented their findings. The board members dismissed their “expert” opinions and went with their antecdotal obeservations and perceptions of development. Logging is a temporary disturbance in conservation terms and creates changes in habitat similar to a wildfire that temporarily shifts the balance for certain species.

      Homes and their impacts are more permanent. The effects are well beyond the building envelope and the roads tend to fragment the ecosystem, in some cases creating areas more akin to island biogeography than a continous landscape.

      To be honest, I support ACR but find the board members dismissive attitude toward the experts testimony upsetting. The developer should have clusterd homes on substantial acreage rather than spreading them out. That the developers did no wildlife assessment…shame on the APA for deeming the permit complete.

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      • Dave Gibson Dave Gibson says:

        Judy, I appreciate and agree with your observation about efforts at APA from Nov-Jan 2012 to obscure or mischaracterize a lot of important ACR testimony.

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      • Mightymike says:

        Judy, please provide us with one quote from an APA board member that demonstrates a dismissive attitude.

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  9. Dave Mason says:

    I’m staying away from the ACR issue. I am not well informed about the facts of the permit.

    My question remains is there independent science comparing the ecological impacts of scattered mostly vacant homes vs traditional logging? Good science is needed on this issue.

    Doing science during a permit process taints the work as baseline science. It is like having a oil company scientist tell you all is peachy with fracking. Maybe it is true, but few believe it. It is seen as science in service to the legal profession. That isn’t what we need done here.

    A Phd project comparing ecological impacts on 1000 acres run as commercial timber vs 4 mostly unoccupied homes would be great. Perhaps the design would need to look at a range of home densities and a range of forestry activity. I’d leave that to a good experimental designer.

    Logging, esp selective logging done on 15 year cycles, is a temporary, but regular disruption. A home is a permanent thing or sure, and here, but the owners are only temporarily present a few weeks a year and the home footprint can be 2 acres or so. Otherwise peace and quiet prevail as normal, just as when loggers leave. The home’s area landscape remains untouched.

    Which is ‘lighter on the land’ at the end of the day? What metrics should apply? The comparison is stark enough that it begs for good independent science, don’t you think? It is not clear what is correct. But we do have tools to find out if we wanted to. My motto in business was “real data always surprises”.

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    • Paul says:

      These type of “experiments” are very difficult (if not impossible) to control. You could do them and get some data but it would not be as solid as you would probably need to be conclusive.

      I think it is more of a public policy issue than a scientific one. The development described and the logging both have an impact that is not really in dispute.

      Even back in 1973 when we knew less we still knew that 1 house per 42 acres had an impact. It was one, that through compromise, we as a state decided was what we wanted. We have been lucky enough (at least some would say) to add almost a million more acres to the side of the table where we will have zero structures per acre (or pretty close, some easements do allow some structures). Given new wetlands regulations and increased setback rules we have set even more land off limits from development. At some point I think we should just step back and say we are doing a pretty good job.

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      • Paul says:

        Sometimes I feel that some of this is just am effort by environmental groups to try and remain relevant. Sometimes you do such a good job that you put yourself out of business!

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  10. Mick says:

    I think it’s important to generate sustainable revenues for the local economy. Home building would bring a surge of economic activity. Home repairs and maintenance would eventually generate economic activity. Skiing (tourism) would generate some, and forest management would generate some. We should look at the best combinations of economic activity that are compatible with good stewardship.

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  11. Don Dew Jr says:

    Dave Gibson, Please also include in your commentary that the letter you are refering to, written by former APA staff member John Quinn included the following ” Open Space is a state of mind” Thanks.

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