Sunday, December 11, 2022

Raising Standards at the Adirondack Park Agency

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.

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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 PreserveDuring 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.

16 Responses

  1. JB says:

    I am continually impressed by your efforts and knowledge, David.

    I was disappointed by the general direction of the official responses concerning Basic Guideline No. 4, and I see no indication as of yet of science anywhere (ecology, management or otherwise), let alone the “best available science”. I’m inclined to think that that term is instead code for adaptive management strategies that essentially throw caution — and the planning and vision so essential to the Park — to the wind, rejecting ideas about limits and carrying capacity altogether in favor of a bureaucratic interpretation of the APSLMP that focuses primarily on a conjured up model of the ideal user experience. As per Stanley Plog, Richard Butler, Peter Willams, et al, this is a recipe for incrementalism, as users with lower thresholds for acceptable use are simply replaced by those with higher thresholds. Even science — especially the best science — involves a certain level of forethought and decisiveness.

    • Lee Nellis says:

      Well said, but there is one turn of phrase I want to build from. It is indeed clear that “. . . forethought and decisiveness” are lacking (and in many places besides the APA), but does their absence tell us that caution has been thrown away? Or does it show us that those who think they are being cautious have thrown everything else to the wind?

      You are defining caution as being careful of the Park and its resources. But an agency that speaks to the public primarily through attorneys and provides potentially debatable information (when it does) only through FOIL requests has a different, more immediate definition of caution; which is to say that it basically defines its mission as avoiding controversy.

      That this leads only to more controversy is apparently either not understood (hard to believe, but possibly true) or ignored in hopes that the issue (whatever it is) will fade away But after decades of watching land use issues go down, I can say that issues do not just disappear. I am helping a small community surrounded by public lands (not in the Adirondacks, but it easily could be) deal with issues that are essentially the same as when I started my career (and that was a really long time ago). These are, of course, issues that they have approached before, retreating when their attempt to resolve things ran afoul of the wrong personality or became uncomfortable. So now, issues that could have been far more easily resolved years ago are with them still, gnarlier than ever.

      David’s sharing of his experience confirms what I am saying here (and I too thank him for the work he puts into this). But how does one change the trajectory?

      Inevitably and only by taking risks. And that starts with small risks, like say, sharing (and without a FOIL request) the complete history of an issue. Perhaps JB or David or others can instruct me, but does the APA really have anything to hide surrounding these issues? I doubt it, and perhaps if the public saw all the discussion that got the Agency to where it is now (wherever that is), people would better understand the context and complexity of the issues and the difficulty of making a good decision. Perhaps there could be an open discussion in which everyone is equally well informed? Perhaps the attorneys could retire to their appropriate place and staff, board, and the public could just talk? Wow!

      Will there be some confusion? Yes, and the staff especially will be challenged to communicate as openly and clearly as possible. Will some members of the public misunderstand or misinterpret? Yes, but how would that be worse than having everyone believe that the APA is nonresponsive?

      • JB says:

        Lee, you make an excellent point. I had considered adding that science (well, not all science, but good science) must also satisfy three further conditions: it must be transparent and it must be apolitical, both of which facilitate consensus.

        But consensus needs to be carefully defined here. I have little doubt that every decision made by APA and DEC is made with some idea of “consensus” in mind, if a flawed one. It would not surprise me if somebody is even looking at poll numbers. (Hey, maybe that’s why they tend to skip over public disclosures and hearings.)

        As an example, Shawn here has said that Adirondack Wild “does not speak for the common Adirondack resident”. Taken literally, I’m sure there is some truth here: many Adirondack residents would not even consider becoming supporting members of Adirondack Wild. But what is Adirondack Wild actually saying that the “common Adirondack resident” disagrees with? Knowing more than a few, I cannot believe that the majority of Adirondack residents want unregulated mining operations and resort-style infrastructure in their backyards. It is not difficult to connect the dots between this general state of confusion and the opaqueness of the APA decision-making process.

        The caveat here is that transparency and consensus alone are not enough. There need to be institutions in place that facilitate, rather than impede, these goals. And I don’t believe that we have this in the Adirondack Park.

        • Nathan says:

          well said JB, there needs to be the conservation of the park as decreed and that wilderness alone is the greatest source of revenue to those living in the same park. major projects ~such as the quarry, was mining is inherently very toxic, the explosive residues are extremely toxic, the mineral run-off can also be very toxic as recorded from 100’s of abandoned mines out west. the nearby resort towns having explosions in near distance, lots of diesel fumes are not good for tourism. so wheres the balance? either the single rich guy wanting his mine, make a fortune, a few people making a paycheck for a decade, and then likely abandoned mined in 20 years with taxpayers having to clean it up yet again….Or the entire towns surrounding the area loosing their tourists, hikers, fisherman, ect and high unemployment and local businesses closed. the entire point of protecting the Adirondacks is to avoid pollution, explotation by a few for profits and above all preserve “real forest” for generations for everyone. it may not suit everyones taste, yes it does make things harder for some to live here, but maybe we need to look at ways of changing this, maybe hiking fee’s, hiring more locals to help improve trains, shuttle buses. APA should be above all safeguarding “forever wild” and finding ways to balance trails/usage and livelihoods. at some point there may even be a need to limit how many can live with in its very boundries as population explodes.
          Would we consider making pit mines in “Yellowstone National Park” next? or septic fields draining into lakes, or a geothermal piping on “old Faithful”?
          we should be holding the adirondacks in such regard as it is one of the best and biggiest state park in the Nation, and largest preserve for nature to live/breed/survive in the north east. those protections set-up to preserve for all time, those are the ideals not to be whittled down/watered down. not to be bought off, or sullied by corruption.

          • I think it is safe to say we have two Adirondack Parks. The high peaks east of Tupper Lake to Vermont and to points south to the Old Forge area are places tourist want to see. The rest of the park is pretty much the bastard step child. People who live in the western part of the park CAN”T survive on tourism. Think about what is there to do and see in these areas. People are not coming to Star Lake, Fine, Parishville to look at tracts of land that have been logged for generations that have no access. When the blue line was expanded in 1930 s the people of these towns were not told that future generations will have to live off tourist dollars. If they were told that back then that blue line would be back where it was in the 20 s.

            • Lee Nellis says:

              The economic woes of places like Star Lake have far more to do with global and national trends, and the environmental and social impacts of extractive activities, than with where the Blue Line happens to fall. That doesn’t mean you’re not right about the possibilities faced by such places. Tourism is at best a small part of the solutions they need.

              It does mean. however, that you’re starting with an attitudinal handicap (and one that I see all over rural America). I did a lot of my growing up in a place smaller than Star Lake which has the same issues and same complaints, but no regulations. Why isn’t it more prosperous (and while I don’t have time to root out the data, my guess is that its even less so than Star Lake)? The question for the places you are talking about is how to make the absolutely wonderful fact that they are in the Park an advantage. You don’t do that by grousing about it.

              One thing you might do is make sure that the APA is a transparent agency with strong professional leadership. Right now, if you think about, you (I guess you’re the “common” man you mentioned) are getting the worst of both worlds. Your grousing makes the APA timid and opaque, at least partly ineffective, and therefore makes the conversationists even more adamant. Its a form of gridlock that wastes your time and theirs, but never generates solutions.

              The next thing you might do is express your commitment (and I do think you have one) of continuing to protect this landscape, BUT doing so by insisting on the collaborative production of new plans that build from the good efforts of groups like ANCA to integrate a reasonable economy with keeping the place “Forever Wild.” What could happen if there was clear direction from both sides? What if there were no longer sides? Wow!

              The current APA doesn’t have the leadership (and will probably tell us that it doesn’t have the mandate – which I think is untrue) or support in Albany that is needs to become a visionary agency once again. But it could, if everyone in the Park agreed that some vision is needed and committed to work together to build that vision.

        • Lee Nellis says:

          Transparency alone would be a fine start. The institutions (I think of them as practices, but a rose is a rose) of collaborative planning are not hard to learn about, though they can be challenging to apply. To begin, one must commit to the full and free sharing of information, including sharing internal deliberations. How can people understand (and respect, does anyone at APA care about that?) policy decisions that are presented as fait accompli rather than a work in progress?

          There is much more to unpack, but not now. I just want to say that I am not sure the “common” Adirondack resident is at all common. The people I have met in these mountains are hardly conformists. What is unfortunate is that the way APA makes decisions tends to promote division rather than unity.

  2. Nathan says:

    great article, and i love how you point out recent APA decissions with total disregard to fact finding, research or proper approval such as pouring herbicide poisons into Lake George with no regard to the massive outrage by scientists and locals. second was the approval of a septic without proper research, it seems a case of money buying rights yet again. The APA has a horrendous reputation and strives to reaffirm that label time and again. Not to be trusted, favortism to big money and big business, bought off. other issues of late 1) reopening Tahawus mines in the water shed of the Hudson river, opening quarry, and it was only huge public outrage that makes APA stand down.

  3. Thank God for the APA. Their job is to find a balance between protecting resources and economic prosperity for park residents. Sorry Adirondack Wild , Protect The ADK don’t speak for the common Adirondack resident .

  4. Peter Carney says:

    … and the “local scientists” could have learned a lot by studying the already available record on the approval of Procellacor and the great success its use has already demonstrated in more than 300 lakes elsewhere. I continue to seek clarification from the “local scientists” and local officials who oppose the use of Procellacor to clearly identify the questions that USEPA, NYSDOH, NYSDEC, LGPC, and APA have not already answered.

    • JB says:

      How are we defining “successes”? If success is defined, as it should be in this context, as reaching a high degree of certainty that degradation products will not have chronic effects on ecosystems or people, then tell us more!

    • Nathan says:

      yes and DDT was a great success, a thing researched for 1-3 years does not mean success, but rather cautious continuation and over long term of decade or more then possibly success. but using a proto-type water herbicide in a protected wilderness and major water shed feeding millions water down stream, that requires full caution, not a 5-10 years and OMG it mimics a hormone and causes cancer. go read “silent spring”

  5. Peter says:

    I read Silent Spring in high school and was inspired to gain an education in environmental science and to recently finish a 50 year career protecting the environment in NY and the northeast always driven by science rather than unfounded fear. Do your homework.

  6. David Gibson says:

    JB and others – these have been very interesting comments to read. Thank you.

    Perhaps another way to say that good science must be transparent and facilitate consensus was written up in Adirondack Wild’s handbook Pathways to a Connected Adirondack Park as one of 10 steps to better land use decisions in the Park (and elsewhere).

    Pathways Step # 7 reads: “Start Early. Encourage preapplication meetings and foster public involvement. The earlier all stakeholders meet and express their viewpoints, goals and desires, the more responsive a project will be to the needs of the environment, applicant and community. In every land use consideration there are three basic areas where problems can arise: in the substantive science, in the procedure, and in a stakeholder’s perception of how their needs are being met, addressed or listened to within the process or, in other words, the psychology…it is the feeling of the public’s disenfranchisement and marginalization that fuels acrimonious debates over land use projects. Local and state officials can alleviate these perceptions by encouraging early, substantive public participation.”

  7. Steven says:

    There is no such thing as a safe herbicide. Herbicides and Fungicides kill fungus bacteria and invasive as well as native plant species. To say they pick and choose which to destroy would be an uneducated statement. Why do sprayed herbicides kill all plant life unless sprayed on genetically modified plant life? Plant life in the park have no genetic modification they are just plants untouched by man’s manipulated hand. Take a modern Agriculture course or Ag chemicals course. There are no safe Herbicides or Fungicides these are facts not pseudo science paid for by the very companies paying for the ” third party ” scientific facts. The North country hasn’t had an economic system some ” common men “claim to know about for about 100 years. Primarily because those economic systems were systems that destroyed the Park and it’s abundant wildlife and plant life. If it were up to these ” common men ” the Park would be clear cut and every granite boulder would be sold to the highest bidder.

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