Monday, February 13, 2012

APA Wildlife Review Process Deficient, Outdated

Will the Adirondack Park Agency reform the way it identifies and assesses impacts to wildlife habitat from new development? Will it employ 21st century ecological understanding by evaluating the ecological impact zone of houses built in the Adirondack backcountry? Will habitat fragmentation, perforation, edge effect, spatial configuration and connectivity, land alteration and additional indicators of ecological impact that Dr. Michale Glennon introduced as evidence at the Adirondack Club and Resort hearing be used as evaluative tools? For that matter, will testimony at future adjudicatory hearings actually matter?
APA staff experts admitted during the Adirondack Club and Resort hearing that wildlife habitat information in the application was missing or highly deficient and that the applicant would not provide the functional wildlife assessment the staff had repeatedly asked for during 2005-2006. Then, during the Agency’s ACR deliberations from November – January, 2012 another set of APA staff, the executive staff, sanitized the wildlife habitat evidence presented to the commissioners in order to make it easier to reach a determination of no undue adverse impact from the club and resort. So, it would seem there is a great deal of room for improvement at many levels. Agency commissioners seemed to agree this was a “learning opportunity.”

Let me briefly review some nuggets from the hearing testimony concerning wildlife:

• Dr. Michael Klemens: “ACR is a virtual train wreck because it does not allow for any understanding of natural systems on the site.”

• Dr. Michale Glennon: “because the applicant consulted only limited databases, did not conduct a field assessment of wildlife other than incidental observations…their conclusions regarding impacts to wildlife are limited.”

• ACR’s own expert, Kevin Franke: he admitted under cross examination that the project sponsor had conducted no species specific inventories of wildlife, neither before nor after the ACR application was submitted in 2005.

• APA’s senior natural resource professional, Dan Spada: asked during cross examination on May 3 whether or not a basic natural resource sampling protocol and natural resource assessment had been undertaken by the project sponsor, he answered “no.” Asked whether there was any baseline information from which future natural resource monitoring could be undertaken, he replied “no.”

• Meave Tooher to Dan Spada: “So at this point in time, is it your testimony that we can’t determine whether or not there’s any undue adverse impact by this activity because we don’t have sufficient information?” Mr. Spada replied: “That’s correct.”

• Mr. Spada, reading from “APA Staff Recommendation to Go to Public Hearing,” a document dated January 31, 2007: “The wildlife functional assessment failed to provide a detailed species inventory and was not conducted over a number of days nor during different seasons. It did not identify vernal pools and amphibian crossing locations. Consequently, lack of information makes it difficult to assess possible habitat fragmentation and potential wildlife impacts or to determine potential localized changed in animal species, composition, diversity, and functional organization from the development and any changes to the biotic integrity of the site and the adjacent properties.”

• APA expert witness, Mark Sengenberger: asked whether habitat information was among the key missing data from the application, he answered “yes, we felt it was deficient… l think staff would have preferred that the habitat assessment be done in more comprehensive manner over several seasons. We asked for that information, as I recall, in the incompletion notice.”

APA Hearing Staff properly paid heed to this and other accumulated testimony in an October 25, 2011 Revised Draft Project Order under the subtitle of Habitat/Wetlands, Finding # 117: “A comprehensive biological inventory of the project site was not conducted, so it is not possible to make specific findings concerning impacts to habitat from the proposed project or to identify the presence or location of specific areas on the project site that should be prioritized for protection.”

By January 20, 2012 – the day of decision – that paragraph was gone, and this one, Finding # 77 under Habitat/Wetlands, substituted in its place: “Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures. In addition to reviewing historical records for threatened and endangered species, qualitative biological surveys including on site visual assessments as defined in Agency guidance ‘Guidelines for Biological Surveys’ were completed during site visits. Other than identifying the deer wintering area as a key wildlife habitat, no other wildlife habitat was identified as containing threatened, endangered or species of special concern on the project site.”

One or the other of these findings is true, but they can not possibly both be true. Agency hearing staff found in October (Finding 117) that “a comprehensive biological inventory of the site was not conducted.” Agency executive staff revised that paragraph several months later (Finding 77) that “site investigations to evaluate wildlife and habitat followed standard guidelines and procedures.” Agency hearing staff found in October that it was impossible to reach findings concerning impacts to habitat. Agency executive staff reached the opposite conclusion by January. Which finding do you think more accurately reflects the actual testimony presented in the hearing?

Referring again to Agency Finding 77, what are “Guidelines for Biological Surveys” which the Agency claims was the standard procedure it followed for ACR? It turns out to be a 1993 set of Guidelines (not hard and fast regulations) to “define a biological survey, articulate the basis on which to require a biological survey, specify the kind of biological survey needed in a given situation and whom shall be required to conduct the survey (APA or applicant).”

Here’s a legal problem: I do not recall this Guidelines document being entered into hearing evidence by the APA or by any other party. If I am correct, then the Agency staff very improperly asked the commissioners to rely on it, and to cite it within Finding 77 of the final project order (improperly because the Agency must solely rely upon hearing evidence).

Here’s another problem, one of institutional knowledge: Agency staff apparently unearthed this document in the last several days before the decision. APA, apparently, went through the entire ACR pre-hearing and hearing years not even knowing it had an 18-year old document to guide a biological survey.

Here’s a big problem I have with its failure to be produced as evidence: I think the 1993 Guidelines would have buttressed the arguments of the Agency’s own staff experts, Adirondack Wild, Protect and Adirondack Council that a comprehensive, full scale, quantitative biological survey was required of the ACR project sponsor, who stubbornly failed to perform it. A table in the document reveals that a full scale biological survey was required and performed for the following projects as of 1993: Lake Placid Resort (Gleneagles), Barton Mines, Butler Lake, Woodward Lake, Niagara Mohawk (Hudson River Corridor), APA Visitor Interpretive Centers, and LaChute hydropower. ACR dwarfed most of these projects in terms of scale and potential to cause undue adverse impacts.

Instead, Agency executive staff acted as the applicant’s agent by mistakenly “interpreting” the document for the commissioners, telling them that a proper reading of it would make ACR ineligible for a comprehensive biological survey, and that the applicant had performed the minimum (site visits, visual assessments, nothing quantitative, only qualitative) that was necessary under the Guidelines, and hence the Agency and applicant had “followed standard guidelines and procedures” (Finding 77). How was that possible if those “standard guidelines” had been virtually forgotten for 18 years? Why was the Agency executive staff, in effect, advising its commissioners to ignore the preponderance of hearing testimony on wildlife assessments and impacts? Why in 2012 is the Adirondack Park Agency satisfied that the most rudimentary of wildlife surveys (“incidental observations”) does the job?

So, here we all are. The Agency’s chair publicly maintains that ACR was a beautiful example of master planning, while those who participated in or closely followed the hearing know that characterization is truly akin to making a silk purse out of a sow’s ear. Many observers of the Agency’s Nov.-Jan. deliberations were shocked by the ecological illiteracy and blatant disregard for the evidence of most of its members and most of its executive staff.

Indeed, there is a great deal of room for improvement. Now that I’ve pretty much exhausted my critique of the Agency’s decision, I’ll try harder to look forward. Many of us are very interested in how well the applicant surveys for amphibians as required by APA permit conditions. Now that the 1993 Guidelines for Biological Survey have been brought to light, when will these be updated in ways that Dan Spada, Drs. Glennon and Klemens could all judge met contemporary scientific standards and APA regulations? And employed before an application is deemed complete?

Photos: Above, Dr. Michael Klemens and members of Adirondack Wild performing a Rapid Amphibian Assessment on a small part of ACR site, April 27 2011; Middle, Spotted Salamander and Spring Salamander were among eleven species found in an eleven hour period; Below, Dr. Klemens presenting testimony at the ACR hearing. Photos by Ken Rimany.

 

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest Preserve

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 managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




11 Responses

  1. Paul says:

    Dave, why are you putting your legal arguments in a blog? Don’t they belong in a complaint?

    Enough venting, what do you think would entail a proper wildlife assessment? Should it be required for all projects or only Class A projects? What will the cost per acre be? Most importantly how will the data be used in the decision process. Where is the line for changing a projects design and rejecting a project outright? If you go down to a microbial level of assessment you could probably reject even the smallest project. I think it is a good opportunity to remove some of the subjectivity of an APA determination. Everyone is for that. Time to get rid of “undue adverse impacts” and replace it with something that is definable and understandable.

  2. Cathy says:

    “Dave, why are you putting your legal arguments in a blog? Don’t they belong in a complaint?”

    What a strange question. Isn’t it obvious? This is a blog read by people interested in the Adirondacks. Dave is hoping enough people will be outraged by the shoddy and inadequate process by which he ACR’s environmental impact is being assessed by the APA that an outcry and political pressure will result.

    “Enough venting, what do you think would entail a proper wildlife assessment?”

    It’s amusing the way you try to trivialize Dave’s report by calling it venting. Again your question is strange because clearly Dave has cited the 1993 assessment guidelines, that were used in a number of important projects (though all “dwarfed” by ACR), as describing what a proper assessment would be. He also gives specific critiques in hearing testimony as to the shortcomings of the process so far. I find this more than enough information to answer your question, which I see as needless obfuscation.

    If the 1993 guidelines constitute an uncalled for “microbial level of assessment,” how come they were used repeatedly during the 18 years since they were written? Do we need to be less vigilant about development in 2012 than we were in 1993?

    “Time to get rid of “undue adverse impacts” and replace it with something that is definable and understandable.”

    That’s your judgment. I think we can see where you’re coming from. There is nothing mysterious about the cited shortcomings, such as “The wildlife functional assessment failed to provide a detailed species inventory and was not conducted over a number of days nor during different seasons. It did not identify vernal pools and amphibian crossing locations.” All these are clearly definable and understandable unless, of course, one refuses to understand.

  3. rideadk says:

    Dave, excellent article as usual. If this is the way the APA is now going to operate the state should just save some taxpayer money and get rid of them altogether. Not only did they ignore all the hearing record regarding environmental concerns they also ignored all the important eveidence on the financial pitfalls facing Tupper Lake in the event of the project failing, as it certainly will.

  4. Gonga says:

    Another excellent article by Dave Gibson. Over the past few years the APA Board has been gradually watered-down with members not truly concerned with the Park’s protection. Many new commissioners have an imbalanced view skewed primarily toward encouragement of development, and away from the primary job of protecting the Park’s resources, rendering the Agency a paper tiger.

    I suppose rideadk was being facetious, but what is need is not to abolish the APA but to provide it with new blood, members knowledgeable in the assessment of environmental issues, as well as economic policies and impacts of public agencies. But the latter should never be the Agency’s primary focus, as is apparent today. It seems to me it is time the environmental lobby put a lot of pressure on the Governor. From what I can see, Mr. Cuomo is in need of education regarding the environment.

  5. TiSentinel65 says:

    The APA act is flawed as written. I personally believe we are economically disadvantaged because of it. Some argue otherwise. Having said that, Dave does score points by showing that sometimes the APA did not even follow guidelines set by themselves. The whole process seems like a visit to a casino. You may win you may lose. Dave, you appeal that a higher level of wildlife assessment was needed. You cite other projects as having it. I am not sure to what detail it is needed. The La Chute Hydro project here in Ti was one example. I could imagine those permit cosiderations would look at maintainig at all times a certain amount of water going down the LaChute for the fish . Other than that, the penstocks, dams and turbine houses are located on old industrial sites. I would not see any need for detailed wildlife inventories or studies because the site has always been industrial use. I am not sure of the details of that permit. Somewhere in the APA act I recall reading the words “over all considerations”. In using this default term it basically means the APA can write the rules as they go. They can lend weight or detract from their own deliberations.They can demand certain actions or not demand them. A standard one day is not a standard the next. It is the reason the APA act is controversial. Trying to navigate it is better left to lawyers, The Adirondack Council, and Sandy Lewis. The little people do not have the money to challenge. Dave you are absolutely right. It is deficient and outdated.

  6. Paul says:

    ““Dave, why are you putting your legal arguments in a blog? Don’t they belong in a complaint?”

    What a strange question. Isn’t it obvious? This is a blog read by people interested in the Adirondacks. Dave is hoping enough people will be outraged by the shoddy and inadequate process by which he ACR’s environmental impact is being assessed by the APA that an outcry and political pressure will result.”

    Kathy, my point was that Dave jeopardizes his case by doing this. If they have a suit and you want them to prevail that it is better for Dave to let the court rule on it. The “court of public” opinion will have little bearing on the outcome.

    As for my suggestion of getting away from the objective stuff like “undue adverse impacts” would actually strengthen not weaken environmental protection afforded by the APA act. Just look at the outcry regarding this decision. Clearly the board had concerns regarding some of what Dave raises but they were able to simply go with their opinion and approve the project anyway. That is where “I am coming from”.

  7. Paul says:

    Gonga, the APA act is not focused primarily on environmental protection. That is a myth that has seemed to develop over the years. But don’t listen to me look at the APA act and you will see that its legislative purpose revolves around environmental protection AND development. All you need to do is look at the section 801 right at the beginning. If you want the board to act in some new way than than we need to take it up with the legislature.

  8. Gonga says:

    Paul, I am quite familiar with the Act, and I disagree quite strongly with your interpretation. Even in Section 801 thsat you reference, “development” appears as something which is threatening the Park and which the Agency was created to control. Yes, the Agency has been directed to provide planning services with respect to encouragement of appropriate development in hamlets, etc., but this is by no means equal in importance to the Agency’s primary resposibility of protecting the Park’s resources.

    “The basic purpose of this article is to insure optimum overall conservation, protection, preservation, development
    and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack park.”

    Perhaps the “myth that has developed over the years” is that the Agency has a primary role in encouraging development in the Park.

  9. Paul says:

    Gonga, maybe that is the problem with the act. Maybe it should not be so open to “interpretation”, yours or mine.

    Like you say things appear to sway depending on who is in charge. That indicates (to me) a weakness in the statute.

  10. Paul says:

    Gonga,

    “The basic purpose of this article is to insure optimum overall conservation, protection, preservation, development
    and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack park.”

    Development and use are on par with protection, conservation, and preservation. Why do you see them as secondary in your interpretation??

  11. Gonga says:

    I see your point. In light of the overall statement, and the intent of the statute in light of the reasons the APA was created under Governor Rockefeller, I read “optimum development of natural resources” to mean regulation of development so as to prevent environmental disasters such as this one.

    “Undue adverse impacts” is standard environmental impact assessment verbage under DEC law across NYS.