Tuesday, March 8, 2022

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 That assumption is no longer valid.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 stepsSEQRAPA
Environmental Assessment Required?YesYes
Determination of Environmental Impacts?YesYes
If Impacts deemed significant, is an EIS required?YesNo
If impact deemed significant, is the scope of impacts evaluated in public?YesNo. Scope of impacts selected by staff
Public hearings held?YesRarely. None in over 10 yrs.
Alternative ways to develop with no or fewer impacts always analyzed in writing and in public?YesNot 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

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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.


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14 Responses

  1. Boreas says:

    Self-streamlining of regulatory agencies has its downside. In this case, it means the APA is no longer doing its job to protect anything.

  2. nathan says:

    APA needs a complete redo, with checks into members for corruption, violations of public meetings, usurping state laws, ect. it is a total failure! it favors the rich developers over communities with disregards to enviroment.

  3. Lee Nellis says:

    There is a lot that could be unpacked here. I thought that David might be calling for the application of SEQRA to APA decisions. That would be worth discussing. But he ends only with a call for the APA to return to making formal findings. I agree, but I do not see how that sets anything right.

    There is a place for checklists in the day-to-day work of any land-use permitting agency. Most of what happens out there is routine. There is a point, though, at which a proposed change calls for a higher level of scrutiny, including an open public process (a process of which hearings are only a part), and for a record of decision that includes findings of fact and conclusions of law. Land use regulation throughout the U.S. proceeds in exactly that way.

    Tuesday is a popular meeting night and I can assure you that there are hundreds of local planning commissions or development review boards making findings and conclusions as I write. Most of them are doing it following a public hearing. Some will do it well, others poorly, but its important to understand that communities with staffs much smaller than APA’s (or even no staff at all) manage to get through the process.

    I do not think, however, that procedural reform, while desirable, would necessarily result in better decisions. It is possible to dot the “i’s” and cross the “t’s” and still make unfortunate decisions. I have written highly defensible sets of findings and conclusions that approved mediocre projects (just as I have wrestled my way through EIS’s that illuminate the flaws of projects that happen anyway).

    The nature of the findings and conclusions made can only reflect the substantive guidance – the enabling law, plan, and standards – under which the decision makers are working. That’s where this discussion has to lead.

  4. Todd Eastman says:

    The devil is in the details. Many small projects can be easily reviewed using checklists with a clear point at which a real analysis is required. Making that decision needs to be performed by staff, and insulated from political or local economic influences.

    Larger projects and local administrative changes to land use regulations need to go through a complete review.

    The injection of the Governor’s office into the APA decision process should be investigated.

  5. Paul says:

    I wonder if the APA is going to allow the building of smaller more affordable housing type units exempt of current zoning like the governor has suggested in NYS? Or will this be another case where the Adirondacks will be put at a disadvantage?

    • Lee Nellis says:

      That is an excellent question. The Governor’s idea reflects a nationwide trend that requires substantial refinement at the local level because how you make it work varies substantially from place to place. It is clear that many local governments are paying attention (though not always in a positive way). The APA has not shown any progressive tendencies lately, so I don’t see it hopping on this bandwagon unless directed to do so.

      What has to be avoided if that happens is changes that open additional land to village or hamlet development in the name of affordable housing without intense scrutiny. That would be the time for an EIS! The APA should be undertaking (should already have done) a thorough build-out analysis of the Park to see if there is actually a shortage of building sites. That is almost never the most significant constraint on affordable housing. The constraints (and I guess from what I see as I walk and drive around that this is true here) are almost always about infrastructure and NIMBY-ism, as well as, sometimes, specific provisions of local codes that need reform. It is also true that regulatory changes will seldom, if ever, produce genuinely affordable housing without complementary efforts in land banking, financing, etc.

      • JB says:

        Lee, I agree with your general train of thought. The concept of ADUs as a panacea for Park housing and economic problems is fraught with potential pitfalls (environmental, social, logistical, etc), and it is a distraction from the broader reforms that actually need to take place to address the crisis that the Park finds itself in, of which housing is but one part. In villages, which seem to be the loci of these issues, residents would be better served by structural reforms (tax reform, STR regulations, etc.)–and ultimately, a reigning in of the tourism-at-all-costs mentality and a Jacobean shift towards mixed-use development. Beyond villages, ADU exceptions would devolve into nothing more than a convenient excuse to circumvent LUP regulations–if anything, ultimately worsening housing supply problems (e.g., what rural places without LUP do have enough housing?).

        We desperately need to be heading in the opposite direction: prescriptive conservation design as opposed to ad hoc development. In terms of how to achieve that, as you, Gibson and others have said, we likely can no longer rely on procedural reforms alone to engender faithful adherence to APA Act. But I’m not optimistic that even a major top-down revamp would be enough either…Even if an APA Act 2.0 could survive in our current political climate, it would not be long until we are back to square one.

        Arguably, what we are seeing at APA and state government right now is crony capitalism at its worst. In this situation, ordinary people do not benefit, whether they realize it or not. Right now, we are not past the point of no return. Sanity and truth still have some momentum. But, the clock is ticking. The best interests of the citizenry do not need to be part of the equation at all when there is so much money floating around in the ether, and said citizens can be outright bought out.

        A high-level goal should be to combat the double-dealing that perpetuates this type of cronyism. Maybe effective reform stands a chance if we can address root causes. Most of all, this boils down to economics. Let’s face it, in a place like the Adirondack Park, tourism generates tax money above all else. And, cui bono? …Bureaucracies (municipal and state) that have little to hold them accountable. Restructuring Park governance (tax and policy reform) and economies (import replacement, smart growth) so that there is little incentive for classism and LUP-resistance–and restoring some level of grassroots independence at APA–may be our best shot. Arguably, the same cannot be said of a purely top-down approach, procedural or otherwise–at least in New York State, where, under the thumb of quasi-privatized and parastatal organizations, top-down takes on an entirely unique and deceptive meaning.

      • Paul says:

        “The APA should be undertaking (should already have done) a thorough build-out analysis of the Park to see if there is actually a shortage of building sites”

        And this is a complicated question in places like the Adirondacks where there are substantial protected parcels where development is not allowed. There are places that are completely surrounded by Forest Preserve – at some point in the future (not too distant for some) there will be NO building sites available. Under some APA restrictions it takes a very large parcel to build anything. So what usually gets built is a mansion.

        • Lee Nellis says:

          There’s no need to address build-out outside the villages and hamlets until someone can actually answer the question of how much potential there is within them. I have done this type of work in various places and while there is always room for an exception, the result has always been that there is way more potential than anyone thinks. The hypothesis that has to be rejected is that, with modest zoning reforms and investments in infrastructure, there is plenty of room to build within the villages and hamlets. If that hypothesis stands, it narrows the conversation to two questions: 1) how do we stimulate building (land value taxation) and 2) how do we make sure a healthy share of what gets built is affordable (land banking, various subsidies).

  6. George Nagle says:

    In 1975 I represented the APA in the legislature when Oliver Koppell, chair of the Assembly’ Environmental Conservation Committee, was drafting the SEQRA legislation. I asked him to include a take out from SEQR for projects that require an APA permit. We felt that requiring a SEQR review in addition to that of the APA would be largely duplicative. The take out is a good government measure that makes sense only if the APA returns to its earlier practice as David Gibson notes.

    • David Gibson says:

      Thank you, George. I am very glad to know of these origins. You are right, it was a good government measure. And to know it was you who delivered that message to Ollie Koppell, whom I only knew as the Attorney General (for such a short time).

  7. Tom Paine says:

    In the spirit of this claimed new openness in NYS government lets make sure all cronyism and backroom deals in Albany are abolished. Let’s make sure that roadways in the Park are not illegally confiscated by the NYSDEC with the blessing of the NYS Environmental lobby to benefit their grand schemes of “forever wild”. And return those roadways that have been illegally taken by NYS.

  8. David Gibson says:

    Very interesting and thought provoking comments. Thank you, all. Lee, just a thought that issuing a Findings statement is more than a procedural step, but the final legal requirement of the SEQR EIS process before final approval, summarizing in plain English what the environmental impact review found and why the project can proceed or why not. It makes a rational connection between project impacts and project conditions. For the last several years, APA Findings are not found in the actual Permit under consideration – such as for the White Lake Granite Quarry in January.

    • Lee Nellis says:

      David: This is probably semantic. Findings of fact (a highly organized summary of what the EIS found) and actions would normally be connected by conclusions of law. That may not be how the SEQRA process is described, but there has to be an equivalent of conclusions underpinning a decision. That is all procedural in my mind. Implementation follows the decision.

      However one describes it, we have no disagreement about the importance of findings and the need for them to be a visibly public document. The proposed finding and conclusions of law should be part of what the public gets to review BEFORE a decision is made.

      I’m trying to find time to write something that builds on what you said because, while having a clear correspondence between facts and decisions is important, there’s an equall fundamental correspondence that has gone missing around here.

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