Monday, February 26, 2024

APA Transparency Still An Uphill Climb

adirondack map

Transparency is defined as the quality of allowing light to pass through so that objects can be distinctly seen. When considering the transparency of public agencies, take the Adirondack Park Agency for instance, it is not just about the APA making information publicly available, but making that publicly available information understandable, intelligible, discernable, truly seen. In recent years and months, APA has made information much more publicly available on its website. However, it has not done a good job in making that information intelligible, discernable, distinctly seen.

At their February meeting APA senior staff led by executive director Barbara Rice, followed by regulatory affairs deputy director David Plante, devoted fifteen minutes describing how transparent their permits, proposed site plans, and comment opportunities have become. Much of that does indeed represent a big improvement in availability of information.

Many years ago, Park stakeholders like me received a two-inch thick, USPS mailing from APA containing all the materials pertaining to that month’s meeting. Essentially, we received what Agency Members received.  Draft permits were included, along with all the staff memos to the board.  Of course, at that time comment letters back to the APA on any of the material required time to read and think, a typewriter, and a stamp.

Eventually, the APA went online, and those thick APA mailings ceased. However, the early Agency websites failed to provide timely details about applications, site plans and permits.  During those years we all had to visit the APA in Ray Brook in order to see APA application files and site plans, or FOIL the APA for the information and wait a long time.

Today, as the staff described at the February meeting many stakeholders can easily access completed major applications and signed APA permits on the website, and can comment on major projects via the comment page. We have to trust that the staff read and treat those comments seriously, but we can check off our internal box that we have submitted a comment.  The FOIL process is now pretty easy via the website and the response time to FOIL requests is rapid, although not all requested information is released.

What is far less transparent today is what the Agency staff think about a new land use application, how that thinking evaluates the significance  of actual and potential impacts on the regional level, and how a project may or may not comply with the law and regulations. The description of major projects on today’s APA website is basic and terse, one, two or three sentences long. The site plan linked to that short paragraph comes straight from the applicant and its quality varies widely.

You have to zoom in to try to see it and to read the plan notes. Natural resources like wetlands, streams, shorelines, steep slopes, biologically sensitive areas are not very discernable or in some cases absent. What resources may be adjacent to the project footprint, in other words its area and regional context with other land uses and controls around it, is absent. Yet, we know that project impacts spread far beyond the actual project footprint. That is called the ecological impact zone. APA knows all about that, but hardly ever evaluates it.

Therefore, it remains hard to intelligently comment on projects from the APA website because the information posted, while available, is not distinct or discernable relative to the impact it may have on the site, or on regional scales.  APA could do more to facilitate informed public comment by flagging issues and areas of concern they are reviewing and by providing better site plan information.

Until 2022, Agency staff provided the public and its members with High Profile reports and  Active Project Application status reports. These reports provided some insight into what was coming to APA before an application was deemed complete and what significance was attributed to those projects. It took judgement to deem a project “High Profile” but that is what we pay the APA to do, exercise a level of judgment and interpretation in carrying out the Adirondack Park regional land use planning statute.

Calling for increased transparency, Adirondack Wild recently wrote to the Agency to ask that the High Profile monthly report be reinstated. For decades that report allowed all Agency stakeholders to be more aware of current and pending projects, as well as those the Agency considers High Profile. Such awareness and advance information about significant projects headed for review, for example the current controversial but incomplete application of Barton Mines in North River, allows for a better prepared Agency board and more effective public participation in the Agency’s work.

However, in February Agency senior staff rejected our request. They deemed the High-Profile reports of past years “not objective.” To have one project listed as High Profile and another of lower profile required too much subjective judgment on the part of today’s staff, they said.  At today’s APA, any whiff of staff independent thinking and judgment are highly discouraged. The result is that Agency staff analysis of a project’s significance and hurdles in meeting the tests of legal compliance remains opaque, not transparent.

More evidence of opaqueness comes in the form of the staff’s Permit Writing Form which substituted for written, substantive permit Findings of Fact and Conclusions of Law that were once the standard at the Agency until about 2019. Today’s permit Findings and Conclusions of Law are reduced to check off boxes and rote recitation of the law, not substantive analysis and evaluation of a permit’s legal compliance written in plain English so that the public and the Members of the Agency can intelligibly discern how and why the permit complies with the law.

The APA’s routine permit writing form reduces all project history and background, site description, and all Agency review of pertinent development considerations – from water resources, to wetlands, to wildlife habitats, to sound and viewscapes, in short all project impacts, etc. –  to a series of binary choices, meaning Yes/No check off boxes with occasional, highly abbreviated staff comments which may or may not be intelligible to anyone but the staff member and their immediate supervisor.

Instead of reading in the Permit itself how staff reached a conclusion, using plain English, complete sentences, and analytical judgement, APA Members and the public are given a list of checked off boxes. Project impacts are hard to distinguish on the form. Worse, it is impossible to gauge from the permit writing form how Agency permit conditions relate to or address any staff identified project impacts on the local and regional environment.

Findings of Fact and Conclusions of Law under the APA Act should not be check-off boxes with hastily written notes in the margin. They should be written prose, full explanations of how the project is consistent with the land use area and why staff arrived at its draft permit order.

This example of a Findings statement in a draft permit comes from 1996 and pertains to a proposed subdivision of Whitney Park in Long Lake (APA project 96-138). Those findings incorporated scientific data gleaned from numerous on-site field surveys for mammals, fish, boreal birds, special habitats and more, and noted that “open space and ecological values of properties of this size and containing these resources diminish rapidly as they are subdivided.” Under “Findings for Open Space, Visual and Aesthetic Resources” the permit noted that the subdivision is clustered in that the lots to be conveyed are located in the northern end of the project site, “with the remainder dedicated to open space, wildlife habitat, watershed, forestry, hunting and recreation and other open space values.” Under Forest Resources, the permit findings stated that: “a traditional grid subdivision of the property would reduce its future timber potential because segmented ownership would inhibit integrated comprehensive timber management for the entire project site.  The best way to utilize the forest resource and at the same time protect its wildlife and open space values and the water quality of waterbodies and streams on the site is to maintain it in a relatively unsegmented ownership.”

Would any APA staff member be able to write such Findings today? No, because such Findings would be deemed too “subjective,” even though Findings like those for APA 96-138 matched the significance of the land use area (Resource Management), its natural resources and regional context, and how best to minimize project impacts through alternative design.

Today’s permit writing form has its place and purpose as a notetaker in the field. However, back in the office, so that Agency Members (and the rest of us) can evaluate whether a conclusion of “no undue adverse impact” to the resources of the Park is warranted, Agency permit drafters should be required to translate the permit writing form into plain English, describe its findings of fact like the 1996 example just cited, and how it reached its conclusions of law, and how permit conditions address actual or anticipated project impacts.

That was the way it was once done. For years, APA permit review staff would write out their Findings and Conclusions in the draft permit, then stand before the Members and the public during meetings to defend it, and explain how it complied with the purposes, policies and objectives of the land use area it was in, and why alternative designs or conditions were or were not chosen.  I did not necessarily agree with all that they concluded, but they handled tough questions from APA Members and from the public. In doing so, they also stood up for the APA Act. Public hearings were held for complex, controversial applications, and permits were modified based on hearing evidence.

Today, the Agency holds no adjudicatory public hearings (none since 2011). Today, the Agency is more of a compliant permit writer. APA is not meeting a full definition of transparency because Agency members and the public are denied project review staff’s written and verbal explanation, interpretation and informed judgements about how and why new land use and development complies with the law. The negative results can be seen in the sloppiness and illegality of some Agency permits, such as those issued for the marina at Lower Saranac Lake, the granite quarry at Forestport, the herbicide treatment on Lake George, to name just three since 2022.

In two of those cases, state courts properly ruled against the APA.  In addition,  last year APA withheld information in its files about its history with respect to public use of motor vehicles in Wild Forest areas, information that deserved to be seen and evaluated by the Members and stakeholders.  Immediately pending at the APA are issues of transparency, proper procedure, and avoidance of conflict of interest related to the APA’s possible move to Saranac Lake. Also up ahead is their review of complex, controversial, impactful projects like Barton Mine’s. Will they hold public hearings for these?

If APA continues on its present course, more adversarial actions against it are inevitable. It doesn’t have to be that way. Let more light shine in, APA. Despite all the improvements in information availability on your website, you still have quite a hill to climb before you can claim to be transparent.

Image provided by the author. 

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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.




4 Responses

  1. Lee Nellis says:

    Both when I managed development reviews and when I taught this stuff my advice to staff and to those learning was simple: All you can do by witholding information is destroy public support for your process (and you). If somebody wants information, send it all. If you have to rent a semi to carry it all to their offices, charge them for the truck, but send it all. Staff were directed to – though an appointment could be required – assist folks who want to look at applications and answer their questions. Even when I was “boss,” I spent many hours doing exactly that. And all of this was in a process (in different states, but much the same process despite the twists and turns in statutes) that featured public hearings for every significant project.

    It is possible to do the work the APA does in a fully transparent way. It happens all the time, and in places with fewer resources.

  2. Gregory Wait says:

    Thank you Mr. Gibson for addressing this issue. Your article demonstrates a great deal of time and effort and care and concern. With the precious resource and beauty that is the park, you would think the agency responsible for caring for it would welcome input from any concerned people. Transparency, the APA letting everyone concerned know what they are doing would be, without doubt, the best way to fulfill their responsibility.

    • Rob says:

      Unfortunately with the APA it is their way or no way. They don’t like to give out info. The less we know the better is their position

  3. Stuart Alan says:

    It’s not just the A.P.A. NY state is consistently ranked among the most problematic states for open government, and it is visible in many state, county, local, and other government entities. The NY Coalition for Open Government https://nyopengov.org is addressing this huge problem, and multiple bills are working through the NYS legislature to require more government transparency. But on a related issue, in addition to the A.P.A., the D.E.C. is also guilty, and refuses to allow citizens to join the email distribution list for Lake George (or other lakes), where post chemical treatment lab analysis results are emailed to a handful of public officials and ONLY TWO private citizen volunteers. The general public themselves, and journalists must FOIL the lab results, waste taxpayer resources, and wait 30 days, at which point the results are no longer actionable or useful. Open Government is a big problem in NY state, and the problem is not at all limited to the A.P.A.

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