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.