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A decision from the Appellate Division last week effectively rejected the Adirondack Park Agency’s long-standing interpretation of its wetlands regulations. I imagine we will be tracking the fallout from the decision for months to come.
That part of the ruling was a clear win for Thomas Jorling, a former DEC commissioner challenging a marina near his Lower Saranac Lake property. But another part of the decision concerning the state’s responsibility to study the carrying capacity of the lake was more of a mixed bag.
On the one hand, the decision sent a clear message to the state that it does in fact have a responsibility to study the lake’s ability to sustain various uses, including motorized boats, calling the state’s failure to do so “wholly unexplained and, indeed, inexplicable.”
On the other hand, the court also ruled that the APA’s analysis of whether the marina would “adversely affect” the surrounding environment was sufficient, regardless of the existence (or lack thereof) of a specific carrying capacity study.
That reasoning appeared to hinge on the fact that the marina developer had the right to replace “in kind” the existing boathouse and dock structures in the same footprint. Since the APA instead garnered numerous environmental protections as conditions of a permit, the court reasoned, it was not “arbitrary and capricious” to determine the permitted project would not have an adverse impact (when compared to the alternatives).
Unsurprisingly, attorneys representing the marina and Jorling read this part of the decision in different ways. Matt Norfolk, representing LS Marina, said the ruling was clear that the state’s failure to conduct a study could not be used to challenge a private project.
“You can’t punish the private sector,” Norfolk said last week.
But Claudia Braymer, who represents Jorling, said she could envision future cases where the lack of a carrying capacity study could be determinative in the final analysis.
Maybe the ruling would have played out differently if the marina was a new project. After invalidating the permit based on the wetlands regulations, the decision’s concluding two sentences read like a cryptic hint that could support either Norfolk’s or Braymer’s view of carrying capacity studies.
“We have considered petitioner’s remaining contentions,” on carrying capacity studies. “Having done so, we conclude that they have either been rendered academic in light of our rulings above or are without merit.”
I guess sometimes academic legal questions become live ones. But I guess the court might also have just found the argument to be without merit if it weren’t so academic.
Photo at top: Sunset on Lower Saranac Lake. Explorer file photo by Mike Lynch
This first appeared in Zach’s weekly “Water Line” newsletter. Click here to sign up.
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I’m overly cautious about admitting that I was an NYSDEC employee (Division of Water) for 30 years. Especially given their current inability to properly function as an agency and carry out responsibilities that used to be conducted in a proper manner. I enjoyed the good years during Mario Cuomo and bit beyond until Andrew started deconstructing the agency and leaving minimal staff to carry out even then barest of essentials. Carrying capacity of a lake in the Adirondacks? Not under NYSDEC’s watch. Not unless they have to hire an outside contractor to get the work accomplished, which seems to be a common occurrence for various tasks. And now, with the current Governor in control who doesn’t appreciate or understand the 6.5-million-acre park, it’s a pretty hopeless situation…..
Jim, your comment got me wondering what studies already exist. I found the Unit Management Plan for the SARANAC LAKES WILD FOREST. It is longer (448 pages) than a John Grisham novel though not quite as riveting. I just wonder what the requirements are for establishing a capacity plan and if the Saranac UMP is a good starting point. What parameters would go into making such a plan?
We are dealing with a similar problem on Fish Creek Pond. The same owner of the marina on lower Saranac Lake owns the former Hickok’s Marina and has the same expansive plans on hold while this all winds it’s way through the courts.Only Fish Creek Pond is minute compared to Lower Saranac Lake and has a scenic, narrow passageway to Upper Saranac Lake. It is a lovely slow friendly congested passageway in the summer now. I have no idea what it will be like with many more boats but it might not be pretty. I do not trust the APA or the courts to make a wise decision here without public discussion. We have valid concerns that need to be heard.
The situation is even worse. USM wants to take 200 of the 600 ft width of Fish Creek Pond as their own for docks. Adding a buffer to avoid the docks, they’re trying to appropriate nearly half of the pond for their business. They know it will be a navigation hazard and their proposal has lights at the end of the docks for night time.
They’ve already starting renting out pontoon boats that many do not seem to be able pilot correctly. We watch the poor attempts at navigation through the Channel to Upper Saranac from our deck; boats driving on the wrong side of the navigation buoys, boats failing to obey the no-wake signs, boats kicking up mud from the bottom because the drivers don’t know how to adjust trim or throttle.
This summer one driver passed a boat in the Channel and I had to paddle quickly out of HIS way; was given the finger when I pointed this out to him.
This will only become worse with approval of the marina’s expansion. We hope that courts and the APA will do the correct thing and stop this.