Wednesday, August 16, 2023

Two groups sue APA over Lower Saranac Lake wetlands

lower saranac lake

Adirondack Wild: Friends of the Forest Preserve and Protect the Adirondacks filed separate Article 78 lawsuits in State Supreme Court in Warren County to contest the failure of the Adirondack Park Agency (APA) to assert its responsibilities for Value 1 wetlands, the most protected class of wetlands, on Lower Saranac Lake.

On June 15, 2023, the APA approved a variance application for a commercial marina located on Lower Saranac Lake in the Town of Harrietstown, Franklin County in two bays – Crescent Bay and Ampersand Bay. The waters in both Crescent Bay and Ampersand Bay contain wetlands, and the project impacts the wetlands at both sites. The project requires the construction of new docks, covered dock structures, pilings driven into the bed of the lake, as well as the dredging of wetlands – all activities involving wetlands – and as such, the project requires a Wetlands permit from the APA before these activities can take place. However, the APA has abrogated its duty to apply the Freshwater Wetlands Act, the APA Act, and the APA wetlands regulations, and has given the green light for the project to proceed without a wetlands permit.

The failure to require a wetlands permit is particularly egregious given that the APA’s prior wetlands permit for this project site was overturned by the New York State Supreme Court Appellate Division weeks before the APA acted on the variance application. On March 2, 2023, the Appellate Division, Third Department, in Thomas Jorling vs Adirondack Park Agency, New York State Department of Environmental Conservation, and LS Marina, LLC, annulled the Agency’s wetlands permit for the project because the Agency “incorrectly interpreted its wetland regulations.” During the prior project review, APA assigned an incorrect, less protective value rating to the Ampersand Bay wetlands. The Court found that the wetlands should have been evaluated using the value one rating, which is the most protected category of wetlands. Both Adirondack Wild and Protect the Adirondacks filed Friend of the Court briefs in that case.

The Court found that the wetlands should have been evaluated using the value one rating, which is the most protected category of wetlands. The 15 pages of APA wetland regulations are highly detailed and specific. According to the regulations, all development in Value 1 wetlands must preserve the entire wetland and not result in loss of any part of the wetland. To quote APA’s website, the APA has “stricter standards for activities in high value wetlands . . . development is generally prohibited in wetlands with a value rating of ‘1.’”

However, in its June 15 order approving the marina, APA made no reference to the court’s prior ruling or to that stricter standard of wetland review. While APA acknowledged these were Value 1 wetlands and that there would be some impacts on those wetlands from the project, it ruled that the project had mitigated enough impacts and required no permit application and agency review.

“On the 50th anniversary of the APA Act and for the first time to our knowledge, APA has ignored potential development impacts upon the most sensitive wetlands in the Adirondack Park,” said Adirondack Wild’s managing partner David Gibson. Wetlands are crucial to conserving water quality, mitigating flooding, and harboring fish and wildlife. “It is astonishing and disturbing when an agency charged with protecting Adirondack wetlands simply chooses to ignore its job to safeguard such significant natural resources. Wetland protection is core to the APA’s job responsibilities assigned to it by the state legislature. In this case the agency shrugged at its lawful duties, regulatory responsibilities, and the Appellate Court’s decision. That legal carelessness cannot be tolerated or other wetlands elsewhere in the Park will be at immediate risk. We take this action as a last resort and only because the APA’s arbitrary, unlawful actions harmful to Park wetlands compel us to do so.”

“Rather than review the project against the value one wetlands criteria, the APA staff and the applicant colluded during secret meetings to devise a strategy to conduct an end-run around the decision. The APA failed to uphold its statutory duty to protect the natural resources of the Adirondack Park,” said Peter Bauer, Executive Director of Protect the Adirondacks.

The variance granted by the APA authorizes the placement of covered dock structures within the shoreline setback area where structures are otherwise prohibited by APA regulations. The APA required a variance for the covered dock structures for one portion of the project, located in Crescent Bay, but failed to require a variance for the covered dock structures in another portion of the project, located in Ampersand Bay. The APA’s issuance of the variance for structures in Crescent Bay failed to satisfy the variance criteria, and the failure to require any variance for structures in Ampersand Bay was arbitrary and capricious.

The Article 78 papers are available online at the New York State Court Electronic Filing (NYSCEF) website, New Cases, under “Adirondack Park Agency” as party in Warren County Supreme Court.

Photo provided

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7 Responses

  1. Paul says:

    “The failure to require a wetlands permit is particularly egregious given that the APA’s prior wetlands permit for this project site was overturned by the New York State Supreme Court Appellate Division weeks before the APA acted on the variance application.” – this is not a quote from the suit, at least it has not quotation marks in the article??

    Is this a journalistic “news” article or an opinion piece?

  2. William Cramer says:

    Protect the Adirondacks sticking their nose in people’s business. They need to worry about the apparently illegal trails all thru the Adirondacks. What about the flooding that occured in Long Lake that could have been avoided if better water control procedures had been in place? What about the huge amount of trees being cut and construction going on at.Lower Lowes Dam? It’s all fine and dandy if it involves more canoe access and parking for the people who want to use Lowes Lake etal. Funny. Nothing was said about that? Funny that the new parking lot in Tahawus as well as the added parking lot at Coney Mt. were never an issue. Funny that the state can operate a train and snowmobiles thru wilderness areas but not wheelers in the same corridors. Quit cherry picking your crusades. People are getting tired of your overbearing need to make others suffer if they don’t subscribe to your dogma.

  3. Mike Damp says:

    The Click bait wetlands photo provided at the Annex marina is where a grandfathered solid wooden boat house stood since 1960 outside the manmade lagoon blocking out all sunlight and also had very large crib foundations supporting the solid wooden structure. This boathouse structure blocked out any possibility of growth of SAV (submerged aquatic vegetation) and limited the fish beds.

    The provided photo proves the environmental benefits the new marina design of removing over 14,000 sqft of solid wooden structures along the lakeshore, removing covered roofs in the manmade lagoon, bringing covered and uncovered docks into deeper water. Removing the old foundations, with 5″ wide piping legs for the fully floating, low impact dock system.

    Evident by the abundant fish beds and SAV that are now thriving in the former footprint of the old covered boathouses that have been removed. The marina solely is also in year 3 of Milfoil mediation in Ampersand bay, which has been extremely successful and provides native vegetation and fish to flourish. There is no denying the environmental benefits of the new modern marina design in Ampersand Bay.

    See you on the water and in court

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