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 Preserve
During 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.
Rivers policy and history, stewardship of our Forest Preserve, and positive interactions with young people from Albany came together on Arbor Days, April 27-28, north of Lake Luzerne. Adirondack Wild: Friends of the Forest Preserve was pleased to play a role. First, let’s review some history.
The role of Paul Schaefer’s Adirondack Hudson River Association: Many years ago, the utility giant Niagara Mohawk power company owned land along the upper Hudson River in Luzerne, Warrensburg and North Creek. One of their goals was to create large hydroelectric dams at Hadley-Luzerne, and the shoreline was considered flowage, where water levels would fluctuate up and down 50 feet or more during power generation, and reservoir filling. Other mega-dams on the Upper Hudson were being planned by the Army Corps of Engineers, which would flood the river as far north as Newcomb. » Continue Reading.
Public wild lands protected by law in New York State can fall under the public jurisdiction of a variety of state agencies. Some of them are part of the system of state parks administered by the NYS Office of Parks, Recreation and Historic Preservation (OPRHP). In northern Saratoga County and across the Hudson River in Warren County lie more than 4,000 acres of beautiful and protected public wild land, part of the Moreau Lake State Park. Much of this land was acquired by the nonprofit Open Space Institute from Niagara Mohawk, and then sold to the public in 1998.
Moreau Lake State Park tripled in size at that time, and is now the largest state park in the region. The six million-acre Adirondack Park north of Moreau Lake, of course, has a completely different legislative history and legal context. It is not part of the OPRHP system of state parks.
This past week, I joined an enthusiastic group of state park officials, staff, park friends, volunteers and concerned citizens at Moreau Lake State Park. The occasion was an Earth Day ribbon cutting at the park’s new nature center, led by NYS Parks Commissioner Rose Harvey. Moreau Lake State Park’s director, his educational staff and the volunteers of Friends of Moreau Lake were given appropriate credit for this new space and added capacity to work with school groups, some of the 400,000 annual visitors to this park. The facility “showcases State Parks’ commitment to environmental education…shared by experienced and passionate outdoor educators,” said the Chair of the Saratoga-Capital District State Park Commission Heather Mabee.
This was visible progress. I once worked as a part-time naturalist and recreation staffer at Moreau Lake and Saratoga Spa State Parks, so it was gratifying to see the greatly improved educational facilities, interpretive exhibits, and dedicated staff that did not exist in the mid-1980s. On the other hand, even in those days I experienced a strong connection to the Adirondack Mountains and the solitude and beauty of the wilderness each time I went to Moreau for a program or a hike. The forests at Moreau do, in fact, act as a transition between the Appalachian oak-pine forests and the northern mixed hardwood forests of the Adirondacks, while the elevation gains to the park’s ridge trails resemble those on many Adirondack hikes.
I was invited to the ribbon cutting for a different reason. Four years ago, Saratoga County Water Authority’s water intake and pipeline from the Hudson River were constructed through a section of Moreau Lake State Park, in violation, we felt, of our State Constitution’s “forever wild” clause that protects the Forest Preserve as defined in State law. Saratoga County is one of 16 counties in the state that fall within the legal definition of Forest Preserve. The vast majority of Forest Preserve lies within the boundaries of the Adirondack and Catskill Parks, but some falls outside these boundaries in the named counties.
Moreau Lake State Park was no legal exception, and it certainly has public wild lands characteristic of the Forest Preserve, so we challenged OPRHP’s allowance of the county water line’s construction through parts of this park. As readers know, the State Constitution’s Article 14 states that lands constituting the forest preserve “shall be forever kept as wild forest lands,” and “shall not be leased, sold or exchanged, or be taken by any corporation, public or private…” The Saratoga County Water Authority, a public corporation, had, in our view, unconstitutionally taken parts of Forest Preserve at Moreau Lake State Park.
Ultimately, the water line was constructed. Although the coalition did not go to court on these grounds, we came to a legally binding agreement with OPRHP that commited $300,000 of public funds to build educational facilities, like the park’s nature center; other funds to add to the park’s wild land acreage; and a commitment to manage large segments of the park as if it were Forest Preserve – although OPRHP is reluctant to name it what I think it truly is. A professional management plan is in place at Moreau, most of the wild land is managed appropriately as Park preserve land, and there is a visible educational and passive recreational emphasis at the park. There are well-advertised hikes, an educational staff is in place, and an active friends group helps the small staff serve the public, including area schools and youth groups.
In short, I am glad we reached the agreement we did. On the other hand, vigilance is still called for. All state agencies responsible for New York’s “wild forest land” should understand and embrace those responsibilities, and resist any kind of taking and exploitation of our wilderness for commercial or expedient ends. After all, our wilderness is a big part of what distinguishes New York State; and our “forever wild” Constitution is the envy of every other state, and every other country on earth.
Photos: Hemlock grove; springtime on the trails; nature center at Moreau Lake State Park.
A columnist from the Old Forge area, Mart Allen, recently wrote for the Adirondack Express about the late Harold A. Jerry, Jr., and he inspired me to do the same. Judging from his experiences with Harold along a trap line during the winter in Herkimer County, Mart Allen concluded that Harold Jerry displayed a depth and integrity of character that should be the measure we take of all our fellow human beings, but often isn’t. That observation about Harold rang very true for me. » Continue Reading.
1988 was a long time ago, and not just in years. It was a different time in America. It does seem like yesterday in my life, but that’s because I’m in my mid 50s and time is speeding up. In the Adirondack Park of 1988, as in the rest of the country, a real estate boom had been underway for some time. Speculators were getting into the game. At the Adirondack Park Agency (APA), the number of permit applications was way up.
The park’s Resource Management and Rural Use lands – the “backcountry” – were under considerable real estate pressure. The Commission on the Adirondacks in the 21st Century would be established by Gov. Mario Cuomo the following year. In contrast with today, in 1988 a majority of Agency commissioners viewed themselves as agenda setters. » Continue Reading.
Will New York build upon its historic leadership as a steward of our protected Adirondack Park, home to people and wild nature, exhibiting the highest standards for ecosystem management? Or will that promise be lost to the lowest common denominator, where the most specious claims to the economic bottom line win the argument, a “go along-to-get along” mindset? Following the issuance of a permit by the Adirondack Park Agency for the sprawling Adirondack Club and Resort, citizens around the state are wondering.
Remember what APA permitted in January: 706 residential units, 332 buildings, 39 large “great camps,” 15 miles of new roads, sewer, water and electric lines, fences and posted signs spread across 6,200 mostly undeveloped forest acres – 75 % of which is in the most protected private land classification in the park, Resource Management. Remember what this permit jettisons: a variety of traditional backcountry recreational uses, including hunting leases as well as forestry operations. The permit sanctioned real estate estimates shown to be highly exaggerated and completely unreliable. The applicant’s payments in lieu of taxes scheme is probably illegal. This is speculative development at its worst. » Continue Reading.
For more than fifty years, woods walkers in the Adirondacks and elsewhere have learned not to take the beautifully smooth, “thin-skinned” bark of the American beech tree (Fagus grandifolia) for granted. Our grandparents grew up suddenly missing the American chestnut as the blight of 1900 quickly decimated that species as a dominant tree in our eastern woodlands, along with its innumerable cottage and industrial uses, and its sustenance for so much of our native wildlife. » Continue Reading.
Will the Adirondack Park Agency reform the way it identifies and assesses impacts to wildlife habitat from new development? Will it employ 21st century ecological understanding by evaluating the ecological impact zone of houses built in the Adirondack backcountry? Will habitat fragmentation, perforation, edge effect, spatial configuration and connectivity, land alteration and additional indicators of ecological impact that Dr. Michale Glennon introduced as evidence at the Adirondack Club and Resort hearing be used as evaluative tools? For that matter, will testimony at future adjudicatory hearings actually matter? » Continue Reading.
The outcome to approve the Adirondack Club and Resort was not a surprise. The ten to one margin of the vote was a surprise. Nor was it surprising that Commissioner Richard Booth assembled the reasoned arguments why this massive, speculative real estate subdivision should be denied. He has an excellent mind, an articulate voice, and a logician’s ability to arrive at the kernel of a matter in relatively few words, readily dispensing with the “dead wood” of an argument to arrive at the heartwood at its core.
The vote went in alphabetical order, so Mr. Booth went first. Here is what he forcefully and passionately argued, in ascending order of importance:
1. Independent experts testified at the hearing that the project sponsor’s sales projections and real estate valuation estimates were completely unrealistic. Since it is the Agency’s job to take into consideration the possible economic and community benefits of an application in judging whether or not there are undue adverse impacts to the Park’s sensitive ecological and physical resources, the failure of the applicant to come up with even remotely reliable quantitative figures (it was shown in the hearing that the applicant derived the projections himself without aid of a professional appraiser or market analyst), means that the Agency must in rendering its judgment, as a matter of the law, largely discount the claims of large or even significant economic benefit;
2. Despite numerous requests to do so by the Agency, the project sponsor failed to conduct a wildlife inventory and assessment, something that is rather routinely done for smaller development projects elsewhere in the state. This failure, in and of itself, is not the central problem. The central problem is that such an inventory and assessment is crucial to judge whether the proposed project design poses adverse impacts to wildlife habitats and migratory pathways. If you don’t know what lives on the site, and where their habitats are, how can you determine the impacts? That is the “big hole” in the application that “never got filled.” This hole can not be corrected with project conditions, he said. To emphasize his argument, he reminded his colleagues that a single hearing expert (Dr. Michael Klemens) who was never invited to tour the property found in a matter of one day and night in a very small section of the project area more species than the project sponsor identified in seven years;
3. Most importantly, the project is not consistent with the description, purposes, policies and objectives of Resource Management land because it spreads houses across thousands of forested acres contrary to the letter and intent of the law. The ecological integrity of Resource Management, and the paramount importance of protecting its delicate biological and physical resources under the APA Act, is violated. A yes vote would send a negative message to other applicants that this type of development on Resource Management is acceptable. Furthermore, given the acreage involved there are many alternative ways to design the project which would avoid this violation, alternatives that the applicant failed to analyze.
The other Agency members followed, many either agreeing with Mr. Booth or sympathizing with his arguments, but concluding that “the process had worked,” the numerous project conditions would adequately protect natural resources, while a permit would lead to a better future for Tupper Lake. “It’s been an education for me,” said Mr. Lussi. “The sponsor has been receptive to some of the sensitive issues, and removed a number of upland developments. The plan is thoughtfully done.” Ms. McCormick of the State’s Economic Development Corporation gushed: “I am happy to vote yes. We’ve protected the land, and achieved tremendous economic benefit.” This is all in line with Governor Cuomo’s program for job growth, she noted. Mr. Wray was the last vote, and he “agonized” over his decision, nodded to Mr. Booth’s arguments, then concluded that “notwithstanding my discomfort, we can justify this.” How he justified it remained unsaid.
Mr. Booth’s logical arguments failed to carry the day because other members largely ignored the hearing evidence (upon which their decision was to rely on) and the law in order to fall into line with one or more of the following leaps of faith:
a. the project sponsor’s assertions of great economic benefit, hearing evidence to the contrary notwithstanding;
b. the feeling that our staff are the experts, we trust them and they say this is OK. Staff concluded that numerous project conditions would satisfactorily protect the park’s delicate physical and biological resources, and that this is an “ever so carefully regulated design” (to quote APA Chair Ulrich);
c. this development seems to fall into line with Governor Cuomo’s economic development program, the APA law and hearing evidence notwithstanding.
There is a large cultural sympathy for Tupper Lake that must also be acknowledged as a factor. “We have to do something for Tupper” is an undercurrent from many in that town and beyond it which, while hardly constituting evidence justifying ten votes in favor, does play with an Agency that craves public acclaim. Tupper Lake does need and deserve plenty of help to develop as a community, I readily agree. However, in this case the fact that “doing something for Tupper” may actually mean taking the same speculative gamble with the community’s resources, services and taxpayers that Mr. Foxman and Mr. Lawson and the project boosters are taking did not seem to overly concern these members.
A critical factor in the outcome of the vote, in my opinion, is that the APA staff performed badly (I could use a stronger word) in their summaries of the adjudicatory hearing evidence for the Agency’s members. On numerous occasions the staff downplayed what they considered “bad” evidence, and emphasized what they saw as evidence favoring the project. For instance, bad evidence that the project posed undue risk to the area’s natural resources from Drs. Glennon, Kretser and Klemens, was often given a sentence on a summary slide, and then members were invited to read the relevant pages of testimony for more. Good evidence, for example staff conclusions that deed covenants adequately constituted project alternatives and satisfactory resource protection, were spelled out in their entirety on a slide.
A particularly egregious example is that in the final project permit order APA staff chose to illuminate a positive April, 2007 letter from the Franklin County Industrial Development Agency “taking official action toward the issuance of PILOT bonds on behalf of the Project Sponsor finding that the Project constitutes an appropriate ‘project’ within the New York State Industrial Development Agency Act.” The staff ignored “bad” evidence in the form of an FCIDA communication dated Feb 1, 2011 which so clearly makes its 2007 letter irrelevant and dated: “It has been four years since ACR’s application to the IDA in February 2007, and nearly that long since an inducement resolution was passed in April, 2007. The board that approved the project has since turned over four times and the project has changed….we have not determined the legal basis, precedent or workability of it (the PILOT) (emphasis mine)…it is premature for the IDA to provide testimony or opinion in the case of the ACR.” Why wasn’t this 2011 letter quoted in the final project order?
Another badly flawed project “finding” that the staff reached is this: “Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures.” This statement is utterly at variance with the hearing evidence. APA’s witnesses Sengenberger and Spada, along with outside experts, all found that the applicant failed to do what the Agency asked it to do, repeatedly, and that it was the applicant’s burden and responsibility to conduct the wildlife studies, not APA’s. At the last moment in the Agency’s deliberations this week, staff distributed to the members a 1993 APA staff memorandum titled “Guidelines for Biological Survey” which had not been disclosed during the hearing. Staff described the memorandum as supporting their finding that standard Agency guidelines and procedures with respect to wildlife and habitat had been performed. In fact, a close reading of this memorandum and its tables satisfies me that the Adirondack Club and Resort easily reached the threshold required for a comprehensive, quantitative biological survey – precisely the opposite conclusion reached by the staff. Agency members did not have adequate time to study this memo, and made no objection to the way staff characterized it.
I conclude:
1. The hearing’s evidence, upon which the members were legally and solely bound to consult in rendering their decision, actually played a relatively insignificant role in that decision. Witness Mr. Lussi’s closing comment that the land has been heavily logged, and is therefore not pristine – seemingly deaf to abundant hearing evidence, even from the Agency’s staff, that a history of logging in no way compromises the ecological integrity and functioning of this Adirondack landscape, while housing development can and does.
2. The facts emerging from the hearing that the applicants failed to carry their burden of proof on wildlife, alternatives and fiscal and economic impacts, and that this did not sufficiently bother more of the members calls into question how and why this Agency performs adjudicatory hearings;
3. The staff was not impartial in the way they chose to present the evidence, and in the evidence they chose to emphasize for the members;
4. Too many staff findings of fact and conclusions of law were not faithful to the hearing evidence and official record;
5. Many if not all of the “significant changes” to the original site plan (applauded by the members as something new) had been decided four years ago.
6. The Agency’s press release issued shortly after the vote was self-congratulatory to an extreme, cited all of the economic and employment benefits shown in the hearing to be highly exaggerated (Mr. Lussi even lectured the applicant about these exaggerations), and could have been written by the applicant himself.
7. There are some good project conditions, such as the after-the-fact wildlife studies and the independent environmental monitors, but these are wholly inadequate to correct such a deficient and defective project application.
I have interacted with the APA for twenty-five years. I readily admit to a point of view. I also have had and expressed great respect for the Agency and its staff over the years, and stood up for the Agency’s mission, budget, policies and staffing levels on many occasions. My final conclusions are, therefore, hard ones for me to express: they are that the Agency voted to give away the park, failed in its duty, failed the public’s confidence, and deserves to be chastised and investigated in the way it is currently performing its statutory mission to protect the “unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park” (Sect. 801, APA Act).
Photo: From the summit of Mt. Morris and Big Tupper Ski Area looking down at the ACR site, Tupper Lake in the distance.
Governor Andrew Cuomo delivered an inspiring State of the State message, which I heard on the radio this week. He invoked the past, gave us all hope for the future, and had a long list of policy accomplishments to point to. He pointed to the need to invest state dollars in the upstate New York economy, especially people who are struggling in Buffalo and surroundings. He spoke up for major state investment in our aging infrastructure. He spoke glowingly of the performance of his economic development councils, and public-private partnerships. If I had to sum it up, in his speech the governor tried to set a high standard for New York, and inspire its citizens to reach for such a standard.
However, the governor said nothing about the high standards of New York’s environment, and how much the state benefits from this condition. One very distinguishing high standard for New York State is and has been its tremendous water supply and water quality, which derives from its undeveloped, mountain forest headwaters – in the Catskill Mountains, in the Finger Lakes, in the Adirondack Park, in the Long Island Pine Barrens, in the Schenectady aquifer, and found in many other very valuable, special places. Lt. Governor Robert Duffy, a former upstate Mayor, understood the value of watersheds for his City of Rochester. As Mayor, he championed the Environmental Protection Fund for its role in preserving his city’s clean water supply from the Finger Lakes.
Governors should never forget how, for instance, the three million acre Forest Preserve in the Adirondack and Catskill Parks distinguishes the state from every other state, and every other nation on earth. These wild lands, just hours distant from twelve million people, provide water to urban and suburban areas which does not require filtration to meet clean drinking water standards. These wild watersheds provide nature benefits which, if they became polluted and not usable, would cost the state many billions of dollars, with untold other costs not measurable in dollars.
In his formal office at the Capitol, Governor Andrew Cuomo has replaced the portrait of former Governor Theodore Roosevelt with one of a former Governor he admires even more, Al Smith. Regarding a proposal to dam an Adirondack river for hydroelectricity back in 1926, here is what then Governor Al Smith had to say about the Forest Preserve:
“In view of the definite attitude of the people of the State with regard to the preservation of their rights in the Forest Preserve, and in view of the further fact that by no stretch of the imagination can this River Regulating District be brought within the purview of the Constitution, I respectfully suggest that the application be denied” (it was).
On another occasion, Governor Al Smith said:
“We owe it not only to ourselves but to the generations to come that the Adirondack Preserve be kept the property of all the people of the state, and should any part of it be flooded, the floodings should be restricted to the public benefit now set forth in the constitution and not for exploitation by private interests.”
Al Smith thought past his own generation, and understood the long-term values of protected Adirondack watersheds. He is the same governor who blocked his ally, the powerful parks council chairman and builder Robert Moses, from constructing an automobile “tourway” around the shore of Tongue Mountain by buying the mountain for the Forest Preserve. Smith also opposed Moses in his bid to construct rustic motels, roads, and gas stations in the Adirondack Forest Preserve. He is the same governor who in 1924 put up a state bond for $15 million – a great sum in its day – to acquire Forest Preserve, including many miles of the eastern Lake George waterfront for the public.
I am hopeful that Governor Cuomo pays attention to this part of Al Smith’s legacy, and internalizes for himself the great competitive advantages in keeping and wherever possible expanding the quantity and quality of large blocks of intact, forested landscapes, many of which are embedded within our State’s Constitution.
Yes, Governor Cuomo and his team have pledged not to compromise “forever wild” principles, which of course is entirely laudable and sensible from an economic as well as environmental perspective.
But isn’t it long past time simply to treat “forever wild” as a rule not to flout, and limited to just the Adirondack and Catskill Parks? Why should it not be an eminently successful and advantageous ethic and policy to embrace and affirm in a State of the State address? Why not propose to strengthen the state’s environmental quality review to measure and control the carbon emissions of many different types of development? Why not study the advantages of expanding the boundaries of the Catskill or Adirondack Parks? Why not pledge to acquire Follensby Pond, or the Essex Chain of Lakes? Why not embrace the Park’s status as an International Biosphere Reserve, and encourage the world to invest in climate and ecological research here? Why not assure localities of the full taxation of the public’s Forest Preserve by placing such a commitment within the Constitution itself? If, in the environmental resilience it gives us, and in its component parts “forever wild” is indispensable as policy, why not develop ideas to investigate and stop any degradation? Why not buttress it, and offer incentives for state and localities to expand upon forever wild in other parts of the state?
One answer may be that there are always strong temptations, matched by lack of awareness and understanding, which can result in great damage in order to achieve short-term ends, even in the Adirondacks and Catskills, much more so everywhere else. Hydraulic fracturing for gas, on the scale contemplated (several thousand permits per year), will forestall the re-wilding of watersheds across a million or more acres of the state. The spidering of roads, trucking, lighting and drilling from the Marcellus shale formations will industrialize a good bit of the state’s rural landscapes, damaging what are now pretty intact forested uplands, wetlands, streams. Were the values of these landscapes monetized, and their nature benefits calculated, the cost-benefit analysis of hydraulic fracturing might be weighted heavily on the cost side of the equation.
Another example where the governor’s high standards are not yet being applied is his Adirondack Park Agency, which should be setting the highest standard for review of development, as well as promotion of applied “smart growth.” Instead, the Agency may be poised to deliver a permit for the worst kind of speculative, sprawling subdivision in its history – the Adirondack Club and Resort – which has failed to properly value its forests, watersheds, water quality, and wildlife, and which greatly overestimated its real estate, tax and sales projections – in a Park which the statutes say must be protected for future generations, and must avoid unnecessary environmental impacts.
Many Governors, and their Lieutenant Governors, in depressed and good economic times, have embraced the idea that managing forest land for ecological integrity is their highest and best use. These leaders have done so despite the ever-present siren song of short-sighted exploitation. Consider these words of Lt. Governor Frank Moore, c. 1951, during an address at the Buffalo convention of the New York State Conservation Council:
“Over the years the greatest enemy of the Adirondacks has been man himself. For almost a century the fight has continued to protect them from the despoiler…The people of the state unquestionably need more water power, but the place to get this…is from the Niagara and St. Lawrence, not by destroying the virgin forests of our great Preserve; not by destroying the Adirondack sponge which is providing our greatest water reservoir. In the solution of our water supply problems in this State we may find our greatest asset to be the Forest Preserve.”
The same could be said today by Governor Cuomo or Lt. Governor Duffy concerning carbon storage and sequestration, stormwater management, water quality to urban and rural areas, and educational, recreational and tourism benefits, among many others. Your honors, it’s a year to go beyond lip service, and embrace our wild watersheds.
Photos: Elk Lake and the High Peaks beyond; Article 14, Sect. 1, NYS Constitution.
Of all the issues out in the media about the Adirondack Club and Resort application and hearing now under review by the APA, there has been a surprising lack of information and discussion about water – sewage from all those homes, potable water supply, run-off, impacts on streams and Tupper Lake itself, and impacts on the Village of Tupper Lake’s public water and sewage delivery and treatment systems.
These are hardly glamorous issues, but they are of intense concern to local residents, village officials and to Park advocates alike, as well as to our public permitting agencies. Tupper Lake, into which a good deal of the sewage effluent will flow, is an extremely important Adirondack freshwater lake, and an important water source for the Village and Town of Tupper Lake. One of the problems in reporting and discussing these matters is that water issue jurisdiction is split between the APA and the Department of Environmental Conservation (DEC), and it is not at all clear to the public where one agency’s jurisdiction over water issues ends and the other’s begins. What is clear is that the ACR applicant, Mr. Foxman, has not completed his applications for the four or five DEC permits he must have to begin construction. These applications pertaining to water supply, sewage and wastewater treatment, and storm water run-off and pollution prevention were all noticed by DEC as being incomplete in a long letter to the applicant’s consultant, the LA Group, dated October 18, 2010.
The DEC water-related permits are completely separate from the APA permit. Indeed, the DEC letter states that only after the water applications are deemed complete and published to allow for public comment, and only after those comments are analyzed can the department judge whether or not to hold a separate DEC public hearing on ACR water issues. So, even if APA issues a permit, ACR is hardly home free. Mr. Foxman noted this in recent interview. Then, there are the necessary Industrial Development Agency hearings required before the IDA can issue the private revenue bonds to build the sewer and water systems, but that’s a whole other story.
The contents of that DEC letter have long been eclipsed by the APA public hearing, but they are significant. For one thing, the department seems very concerned about the applicant’s stormwater pollution prevention plan (so-called “SWPPP”) as well its wastewater treatment plant proposed just south of Cranberry Pond. As much as possible, DEC seems to want ACR to dispose all its sewage effluent in the Village of Tupper Lake’s sewage treatment plant, and not on site. During 2010, DEC developed new stormwater standards based on a policy of non-degradation of receiving waters. In other words, Tupper Lake can not receive more pollutants from storm and sewage runoff after developing the ACR than it receives currently without the ACR development. And there is the question of current conditions. How is change measured? DEC is not comfortable with the adequacy of current water quality data – as a baseline for measuring change in the watersheds affected by the ACR. DEC may demand that Mr. Foxman conduct a thorough baseline examination of current water quality conditions in the streams and “receiving waters” such as Cranberry Pond and Tupper Lake.
Of the applicant’s August 2010 stormwater plan update (SWPPP), DEC writes that the applicant’s plan is “inadequate for addressing stormwater runoff from the proposed development….the significance of the post construction stormwater discharges and the extent of the proposed changes to the natural conditions of the drainage area raise a concern to prevent the receiving waterbodies from potential impact. The plan is not presenting any water quality analysis, water balance analysis, or downstream analysis particularly to the most immediate water courses feeding to the down gradient streams or lakes. Discharges to small lakes and headwaters in the stream network raise the question of cumulative impact of the development on these types of waters. The primary concern is the impact of increased flow volume and nutrients due to runoff from new development.”
So, DEC has a long list of technical issues the applicant must address for stormwater, including new design standards, reducing the total amount of runoff, and greater use of “green infrastructure” to handle the runoff. To further quote from the twenty page letter: “Due to the large areas of steep slope being disturbed as part of this project and the number of sensitive receiving waters located at the project site, the individual SPDES (State Pollutant Discharge Elimination System) permit is going to require the owner to hire a dedicated erosion control team whose primary role will be repairing, maintaining and upgrading the erosion and sediment control practices that will be used at the site.”
This part of the DEC letter is interesting because it seems to conflict with the APA staff’s conclusion that Mr. Foxman has avoided building on steep slopes, and that “implementation of proposed grading, drainage, site layout, erosion and sediment control, on-site wastewater treatment, road and stormwater plans will serve to protect soil, surface water and groundwater resources” (APA Draft Conditions). Those APA draft conditions merely note in one sentence that the applicant has to comply with updated DEC stormwater runoff design standards.
There are a host of sewage related concerns in the DEC letter. First, the letter states that the applicant has yet to provide engineering details about how the new sewage plant would operate, or the wetland treatment system downstream of the plant which the applicant says will “polish” the effluent. Second, DEC feels the applicant has yet to evaluate alternatives to the current proposal to send some sewage to the village plant, send some to a new plant to be constructed above Cranberry Pond, and build septic tanks and leach fields for about half of the 39 proposed Great Camps. Alternatives are “a critical component of the Department’s review because the Department must ensure that the project conforms to the State’s water quality anti-degradation policy…At this time, it appears that connection to the municipal sewer system remains a viable alternative.” The letter notes that one new proposed plant near Cranberry Pond, designed to treat up to 150,000 gallons per day of sewage, is not the preferred solution. A new on-site sewage system should be “the treatment option of last resort. Due to phosphorus in the wastewater, subsurface discharges are the preferred alternative.”
The letter notes this concern: “Phase 1 of the proposed development is anticipated to generate 12,448 gallons per day of sewage. The Department is concerned that during low occupancy periods, the wastewater treatment plant will experience flows well below this rate and will have difficulty operating properly. Please provide an evaluation of how the plant will perform during periods of low flows and also during cold weather periods.”
DEC is very concerned about long pipes or mains serving infrequently occupied residences far from the source of water or the treatment of the sewage. Having sewage, for instance, sit for long periods in the long, small diameter force mains and grinder pump stations necessary to reach some of the Great Camps will result in serious operation and maintenance problems, the letter notes. Only when the DEC is convinced that there is no possible on-site septic opportunities for all of the Great Camps will it allow this type of sewage development, it states. At present, ACR plans to sewer the 15 western Great Camps because, in APA’s opinion, bedrock makes it infeasible to develop septic systems there.
“There are inherent operational problems in running long water supply mains” to serve the Great Camps, the letter states. DEC concerns are that water stagnates in these long pipes, and that this stagnant water will lack contact with chlorination or other disinfectant agents, and that secondary chemical byproducts could form in the water. DEC recommends that no Great Camps be served by the project’s water district, and all be served by on-site wells. This recommendation appears to conflict with the current proposal that has gone through the APA hearing, whereby at least 15 western Great Camps are planned to be served with public water supplies.
One could go on and on. APA still has received no septic system plans for many of the Great Camps, and many of these may not be feasible to be built. Impacts on Cranberry Pond from sewage effluent, from stormwater runoff and from use for snowmaking are very much up in the air. Many citizens are worried about all of the pharmaceuticals that ACR residents will flush down their toilets, which will end up untreated in Tupper Lake and Cranberry Pond.
Then, there are unanswered questions about how any of the ACR’s sewage will get to the Village treatment plant. While Village officials and DEC seem to agree that the recently upgraded Village Sewage Treatment Plant has sufficient capacity to handle ACR, the sewer collection system will need a major upgrade to get ACR sewage to the plant. A new four-six inch force main will have to be built under the Rt. 30 causeway across the Tupper Lake marsh, and DOT is adamant not to dig up the road again. Outside of the road, one side is Forest Preserve, and all is freshwater marsh. Mr. Foxman had the chance to put a new force main in when Rt. 30 was freshly dug up in 2006-2007, but refused to pay for it. A new main will be needed at Wawbeek Street. Then there are the necessary upgrades to the pump stations and gravity lines.
To sum up: DEC now requires far lower biological oxygen demand in waters receiving sewage effluent, meaning that treatment must remove much more of that demand before downstream release. How, in the cold Adirondack climate with strung-out infrastructure on and far beyond Mt. Morris will ACR achieve this? DEC requires more precise water quality measurements before development takes place to measure “non degradation of receiving waters.” When will ACR conduct these measurements? Through the DEC applications, the stormwater run-off performance of all of ACR’s housing and roads will be subjected to individual scrutiny. Meanwhile, there may be significant differences between what APA considers approvable, and what DEC deems sufficient from a water quality perspective. The public won’t learn much about all this during the APA’s current permit deliberations. But the other shoe, taking the form of costly final DEC permit submissions and possible hearings, will eventually drop.
Photos: Above, Mt. Morris from Cranberry Pond in winter; below, Mt. Morris from the Rt. 30 causeway.
Today I select what I consider to be important excerpts from the testimony in the public adjudicatory hearing on the Adirondack Club and Resort. These particular excerpts come from testimony contained in the official hearing record delivered by four experts in the fields of wildlife science, conservation biology, and the ecological sciences.
These experts are Dr. Michael Klemens, Drs. Michale Glennon and Heidi Kretser, and APA scientific services staff director Dan Spada. In future posts, I plan to cite hearing testimony from experts in fiscal and community impacts and economics. The testimony was provided during the 19-day long Adirondack Club and Resort adjudicatory public hearing which spanned the period between late March and late June, 2011. This testimony is part of the hearing record, which closed in late October. The members of the Adirondack Park Agency must make a determination about the project based solely upon that official record. The members anticipate reaching a decision at their January, 2012 meeting. Their deliberations continue during the APA’s December 15-16, 2011 meeting, which is open to the public.
ACR is the largest subdivision and development proposal to come before the APA in 35 years. It’s comprised of 706 residential units, 332 buildings, a new ski lodge, restaurant, gymnasium, marina, equestrian center, and 15 miles of new roads, sewer, water and electrical lines spread over 6235 mostly undeveloped acres on rugged, forested terrain several miles from the Village of Tupper Lake.
Some of the testimony that I cite is pre-filed written testimony, and some is direct testimony and response to cross-examination during the hearing.
Dr. Michael Klemens, conservation biologist
During the April 27, 2011 hearing in Ray Brook, attorney for the applicant cross- examined Dr. Klemens about how extensively he had reviewed the application. Dr. Klemens responded:
“I looked at the overall layout of fragmentation on the site created by the distribution of the proposed uses, which snake all over the site, which are — basically I call sprawl on steroids. What you call the Great Camps, I call not-so-great camps. They’re basically large scale sprawl. I looked at the interface of the roads and the houses packed onto steep slopes above wetlands basically without any understanding of the biology, the ecology of the site. Yes, those things can occur on the site, but are they in the right place on the site? We don’t know because you haven’t provided us with any kind of information to make an informed planning decision based on science. This site reflects basically the hopes and aspirations of the developer, not any scientific understanding of the site.”
Asked how Dr. Klemens would define the term “ecological footprint,” Dr. Klemens responded on April 27 as part of the following Q&A:
“It’s the zone of impact and influence …– which will disrupt the environment writ large by a development. You can put — for example, …– a road is a great example. A road is a rather linear impact. It has a cleared area. It has swales or underdrains, and that. But the impact of a road, depending on the intensity of its traffic — and there’ve been lots of studies on this — the impact can extend a quarter to half a mile on each side of the road through road mortality, noise, and disruption. So that’s what impact analysis is — to understand how a layout on any development project or any use will actually spill over through lighting, through noise, through all those other variables into the ecosystem.”
Q. In looking at the materials that you did review concerning this application, can you describe in a little bit of detail what you perceived in your expert opinion to be the ecological footprint of this project?
A. It’s extremely large. I haven’t calculated, but it’s large because of the amount of roads and the amount — and the way the development is spread across the site.…– it’s a fairly large footprint. And again, that footprint will vary dependent upon also the species. The species respond — if you’re talking about wildlife, they’re responding at different scales. Birds respond at a different scale to amphibians, to a different scale to area sensitive carnivores. So it’s not — the impacts are at different scales. But this is a fairly spread out development. I mean basically to me …– it is sprawl. It is sprawl — the Great Camps are what I consider very, very large lot residential subdivisions in a sense. They’re very large. There’s one that’s actually – maybe approaches what? A thousand acres? But these things generally –…– it’s not unlike many suburban developments. These large dispersed developments give people the illusion …– of greenery and ecological integrity. In fact, they spread the impacts out with a huge amount of edge effect and a huge amount of impact. And — … that’s why you want to think about trying to make it more compact. And we heard excellent testimony yesterday about how making the development more compact would — … meet a variety of objectives.”
“There are large zones of influence on wildlife which will be disrupted by the project. People look at wildlife. They think wildlife moves in corridors. Wildlife moves across the landscape almost like sheet flow of water. There’s movement all through the landscape. And that continues for some species, less effectively in a logged landscape, but it continues, and there’s recovery. Once you put on a hard landscape of roads, development, and other amenities, you fragment that sheet flow of wildlife and organisms across the landscape.”
“I would anticipate based on my rapid amphibian assessment that there would be at least fifteen species of amphibians breeding on the site. For their small size, amphibians pack an ecological wallop because they control so much of the energy transfer in and out of ecosystems. Amphibians are bi-phasic, meaning that they breed in vernal pools and move to uplands the rest of the year. Wetland protection alone will not protect these species. The habitats of these animals are linked to uplands.”
Drs. Michale Glennon and Heidi Kretser, ecologists for the Wildlife Conservation Society’s Adirondack Program in Saranac Lake
Asked whether the proposed ACR would create an undue adverse impact on Resource Management lands, Dr. Glennon answered “Yes.” She wrote in prefiled testimony:
“An alternative design which reduced the spatial extent of the development associated with the great camp lots would have a much higher likelihood of reducing negative impacts to wildlife.”
“Biotic integrity is very likely to decline on the project site, and will decline more so than it would if development were primarily directed at the Moderate Intensity lands within the site.”
ACR is “likely to result in an increase in human-adapted, generalist species, with a concurrent decrease in those species which are more specialized and most likely those which are rare in New York State.”
“Cumulative impacts are significant.”
“Those species which tend to be negatively impacted by residential development are those which the APA Act intends to protect, such as species which are generally rare, many of them restricted to the Adirondack Park within NYS.”
“The proposed ACR development will negatively impact the majority of large forest blocks present on the RM lands because the large lot sizes associated with the great camp development result in the sprawl of homes and associated roads and driveways across a large proportion of the site, and in large core forest blocks being divided into smaller areas.”
“Among rare songbirds in NYS, more than half are forest birds and the majority of them are boreal and conifer specialists which are confined to the Park within NYS…They are iconic of the region, they are rare..and they are specialists on boreal and core forest habitats. Because we know they occur on or near the ACR property, the project will impact Key Wildlife Habitats.”
Asked whether there would still be undue adverse impacts even if the large eastern Great Camp lots were on “substantial acreages,” Dr. Glennon replied on June 24 as part of the following Q&A:
“Yes, I think it’s possible.” Q. And based on the current state of the science? A. Yes. Q. Would the impacts from those eight houses, if they were located on resource management lands, be significantly reduced if they were located so that their zones of ecological impact — I believe you called it — overlapped with each other and they were on short driveways close to a public road?
A. Yes, very definitely. And there’s probably lots of different ways in which they can be condensed – with fewer impacts on the landscape.”
Asked if the project as designed met the basic purposes of Resource Management lands, Drs. Glennon and Kretser both replied “No.”
Dr. Kretser wrote:
“The project as designed does not meet the basic purposes of RM lands. As evidenced by my colleague’s testimony, it does not protect the delicate physical and biological resources. The proposed project does not encourage proper and economic management of forest because the entire property is divided into smaller parcels…The proposal does not maintain the unique character of the Adirondack Park. The number of residential structures being proposed…represents more than have been added to the majority of townships in the park in the years between 1990-2004.”
Daniel M. Spada, biologist and staff director of NYS Adirondack Park Agency’s resource analysis and scientific services division
Asked on June 23 about the impacts to natural resources, and whether alternatives could be developed that avoided those, Mr. Spada replied:
“My current concerns on the resource management parcels, both on the large Great Camp lots and the smaller Great Camp lots is that those impact zones have not been collapsed. They haven’t been overlapped to the greatest extent possible, in my opinion. There are still some areas, I think, where driveways can be shortened, dwellings can be moved closer to roads, to existing roads, and that sort of thing.”
Mr. Spada was then asked “Are there other modifications that you think could reduce the impacts?” He responded:“Certainly. A reduction of the number of units.”
Q. Reduction of which units would you recommend as reducing the impacts?
A.”If you look at this map, Exhibit 244, and the resource management areas, it becomes been pretty obvious where there’s a high density of units in a given area. For instance, with the west face expansion, with the next seven hundred and fifty foot zone, it — it pretty well blocks out that area as far as being of utility for wildlife habitat. So that might be a spot where either units could be reduced in number or they could be reconfigured…I think we need to balance the number of units, the configuration of the units, and resources on the project site.”
Q. And to your knowledge, were those types of alternatives evaluated by the sponsor?
A. Not to my knowledge.”
In his pre-filed testimony, Mr. Spada wrote:
“While I agree that existing development and use of the project site already affects wildlife habitat, in my opinion the proposed project would increase the significance and duration of the impacts…the impacts from the changes to the existing roads in amount and seasonality included increased levels of habitat fragmentation and direct wildlife mortality.”
“The Great Camp Lots are arranged across the landscape in a relatively uniform configuration and the three-acre development envelopes are relatively widely separated from each other as in classic exurban development. To adequately protect the forest resources, the development should occur in a configuration that reduces impact zones from the development by overlapping them.”
Mr. Spada goes on to define Ecological Impact Zones (EIZ), assess the extent of impacts on wildlife, and discuss alternatives to the ACR layout. He writes:
“When the actual footprint and its EIZ for the components of this project are considered, the amount of wildlife habitat that would not be impacted by the project is considerably less than the amount of open space reported by the Project Sponsor…Over the entire site, 63% of existing wildlife habitat will be preserved.”
“In my experience this process (of identifying alternatives) can be short-circuited by identifying a preferred alternative prior to conducting the analysis. That is what has occurred in the case of this proposed project. In my opinion, the analyses noted above do not constitute a true alternatives analysis. Different scenarios were not described and impacts were not compared…In my opinion there has not been an organized and rational discussion of reasonable, potential alternatives.”
“Good design collapses and overlaps the zones of impact from the development activities to minimize negative effects…The twenty-seven small Great Camp Lots in RM are not clustered as tightly as possible, nor are their zones of impact overlapped to the greatest extent possible.”
“One alternative would be to eliminate the eight large Great Camp Lots east of Simon Pond, and reduce the size and spatial spread of the smaller western and eastern Great Camp Lots in RM. It’s possible under such a scenario that the eight large Great Camp Lots eliminated from east of Simon Pond could be relocated closer to the small eastern and western Great Camp Lots and closer to the ski resort. This would reduce road mileage and infrastructure costs, minimize loss of open space, minimize habitat fragmentation and allow for continued effective sustainable forest management east of Simon Pond. This alternative scenario, although suggested by Agency staff, was never proposed by the Project Sponsor nor was it evaluated to the same level as the existing proposal.”
Asked whether he agreed with the project sponsor’s contention that the area is currently highly fragmented by logging activity and the proposed development will decrease habitat fragmentation because logging activities will cease, Mr. Spada replied:
“No. The broad statement about the current state of the property is not supported by data and the conclusion that habitat will be improved is not justified by current research or scientific understanding. Logging disturbances are temporary, whereas structures and roads are permanent. Logging disturbances are also periodic and on discrete sites within the property, not constant and evenly distributed. There is one major logging road through the part of the property east of Simon Pond. The road is and will remain unpaved. It is used sporadically and traffic volume is low. It is unclear whether the proposal to access the eight larger Great Camp Lots on a year round basis has potential for greater impact than existing road use by two hunting clubs with many members on a typically seasonal basis.”
“Based on my experience and my review of recent research concerning habitat fragmentation [Exhibit 90, APA hearing staff response to Protect the Adirondacks, Discovery Request, Item 11: Glennon and Porter (2005) Trombulak and Frissell 2000, Hansen et al. 2005)], it is my opinion that bird community biotic integrity is not influenced by forest management as generally practiced in the Adirondacks. I believe that biotic integrity does respond positively to roadlessness and negatively to development. It is my opinion that long roads dividing undeveloped areas are of concern for fragmenting wildlife habitat. These impacts can be mitigated by minimizing the length, width and frequency of use of the roads and locating them near the periphery of undeveloped blocks of land. In reviewing this proposed project, Agency staff have asked the Project Sponsor to consider modifications to the proposed project and alternatives to the proposed project that would minimize these impacts.”
Photos: Above, from Mt. Morris looking at Tupper Lake; below, from Mt. Morris looking toward the Village of Tupper Lake.
There’s a great deal weighing on people’s minds this early November, starting with how they’ll get through another Adirondack winter, keep their family healthy, and earn a living. Some are wondering if they’ll be elected on Tuesday, others confused about who they’re going to vote for. One town supervisor I spoke with in July informed me that four of his town’s five rural post offices would be shuttered in 2012, and asked me if the fate of local post offices concerned me. I said it did.
My Adirondack Wild colleague Dan Plumley and his neighbors lost their Keene Valley local post office this year. I do recall a citizen campaign waged decades ago to keep the only small post office in Hallowell, Maine – near where I was born. It succeeded. Hope is always a crucial part of any early November day. Some lose their immediate November worries and thoughts in the fall hunt, or adventure. My conservation mentor Paul Schaefer was in hunting camp this time of the year, beginning in 1931 when as a 23-year old he first guided the Cataract Club into the Siamese wilderness until the mid 1980s when his bad knee finally gave out on him. Often, Paul and other members of the Cataract Club would climb Cataract Mountain which stretches for miles above the East Branch of the Sacandaga River valley in Bakers Mills. That’s not the mountain’s designated name. On maps it is Eleventh Mountain.
Paul wrote in his book Adirondack Cabin Country (Syracuse University Press, 1993) that “Half a century ago a number of us who hunted that mountain and were enthralled by its magnificence, decided to give it a more fitting name. ‘Cataract Mountain’ it has been, and it is for us, U.S. Geological Survey maps notwithstanding. Five crystal streams tumble off the thickly forested peak that stretches 3, 249 feet in elevation. Some of the cataracts that form are spectacular.”
This past weekend I bushwacked up Cataract Mountain with my friend Herb. I think we were going to find something, not to lose our thoughts or troubles, relatively light as those may be – perhaps to find a coyote standing tall on that peak, yipping and yelping and looking out on their wild domain. Despite the slow, tough climb around boulders, birch, beech and balsam thickets, Herb said he was determined to summit.
When we finally reached one of the mountain’s five summits, we rested and looked out at the valley of the East Branch of the Sacandaga glimmering 900 feet below us, Rt. 8 winding to its left. We gazed on Black, Harrington and other mountains in the blue distance. Suddenly Herb exclaimed, jumped up and found coyote scat not 20 feet from where we were eating our lunch. Look, Herb said, a coyote did survey his domain from this very spot! As had Paul Schaefer, many times.
Paul writes in Adirondack Cabin Country: “There are numerous spots where I can stand on a rocky ledge above the precipitous forested slopes dropping off to the valley far below and experience a solitude so wonderful that it causes emotions I can not describe…Here on Cataract Mountain – protected by the ‘forever wild’ covenant – the work of the Divine Artist is all about us, from the lichens clinging to the bare rocks to the hawk wheeling in the sky far above.”
It was true. The rock, lichen, ferns, shining, soaking moss had a luminous intensity during Herb’s and my adventure. We checked our watch. Fleeting thoughts of home and of gathering darkness found its crevice and latched on. We’d better go. Picking our way down the steep slope, we reached the trail in good shape as the sun was setting, pleased with ourselves. A mile away on the other side of the mountain, the Cataract Club was settling into their camp, now in its 80th fall season. As for their quarry, the sagacious white-tailed deer, it was long gone – like that coyote.
Photos: Above, Paul Schaefer at his Adirondack cabin below Cataract Mountain; Below, Herb at the summit of Cataract, or Eleventh Mountain.
As Brian Mann recently reported on North Country Public Radio, Adirondack Park Agency (APA) commissioners recently toured the Adirondack Club and Resort (ACR) site. In addition, parties to the hearing have less than a week to make any final reply to the closing statements or legal briefs. In November, Adirondack Club and Resort’s public hearing record will close, and be delivered to APA. This winter, the commissioners will have to render a decision on the application based on that record, and only upon that record. Eight years of pre-hearing review and debate will reach some kind of conclusion. For those unfamiliar, ACR is a resort proposal comprised of 719 dwellings in 14 separate areas proposed to sprawl across 6200 acres a few miles southeast of Tupper Lake Village, on the slopes of Mount Morris above Tupper Lake and Lake Simond, and just west of Follensby Pond. The subdivisions are proposed for 4800 acres of lands classified by the APA as Resource Management (the most protective land use area under the APA) and 1200 acres of lands classified as Moderate Intensity Use, with a few hundred acres classified as Low Intensity Use. This is the largest second home development proposal to come to the APA since the mid-1970s.
In future posts, I may focus more on the ACR hearing record, but for now I write about several personal impressions, as well as myths about the hearing and the APA law.
Impression 1: All of us involved in this hearing had the privilege of appearing before a truly competent, unbiased, helpful law judge in control of the proceedings, Daniel O’Connell of the NYS Department of Environmental Conservation’s Office of Hearings and Mediation Services. For newcomers to a full-blown adjudicatory hearing, Judge O’Connell regularly coached and talked parties not represented by lawyers through our frequently awkward efforts to cross-examine witnesses. Sometimes, he suggested how we could reword our questions to avoid objection. He was assiduous about maintaining the record and exhibits, reasonable about the hearing schedule, insisted upon decorum at all times, patiently listened to all motions and explained his rulings. Most significantly, he gave all parties an equally liberal opportunity to present evidence, admitting into evidence many items that opposing lawyers argued should not be in his effort to assure the APA commissioners with as full a record as possible.
Impression 2: My colleague Dan Plumley and I have watched the APA closely since 1987, and observed past agency staff developing a hearing record. Therefore, we were regularly surprised – and occasionally shocked – by the premature lengths agency hearing staff went in this hearing to argue that various draft conditions on a permit would mitigate demonstrated or potential adverse impacts of the ACR. One day early in the hearing, the agency hearing staff member seemed less interested in what a witness had to say about actual or potential visual impacts of the subdivisions, and more interested in how draft staff conditions had already addressed the problems. How could this staff person know to propose a solid mitigation measure if he wasn’t completely listening to the witness? Wasn’t developing the hearing record more important than presenting draft conditions to a permit so early in the proceeding before the evidence was presented? Isn’t the agency by law and regulation supposed to avoid and minimize impacts before it simply accepts them and attempts to mitigate the damage? I know that the hearing staff are not offering any recommendation to the commissioners as to whether or not to issue a permit, a permit with conditions, or a denial. I also realize that some of the proposed conditions may constitute effective mitigation. However, hearing staff appeared overly eager to condition a defective application and bend to the project sponsor’s aspirations during the proceeding, and even in their closing brief.
Myth 1: APA balances environmental with economic issues. Some media and project proponents portray the 1973 APA Land Use Plan as a balance between resource protection and economic benefits. It wasn’t, and it isn’t. The law’s section 809 states that the agency, in rendering a determination, must find that a given project “would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park, or upon the ability of the public to provide supporting facilities and services made necessary by the project, taking into account the commercial, industrial, residential, recreational or other benefits that might be derived from the project.”
There is a vast difference between taking potential benefits into account, and a legal obligation to balance two very different missions. APA’s is an environmental mission, not a balancing act. The courts have ruled this way for decades. In fact, in Association for the Protection of the Adirondacks v. Town Board of Tupper Lake (3d Dept., 2009), the appellate court wrote that in contrast with the State Environmental Quality Review Act, or SEQRA, “the APA…is not charged with such a balancing of goals and concerns but, rather, is required to ensure that certain projects ‘would not have an undue adverse impact”, etc. “Clearly by placing environmental concerns above all others, the APA’s mandate is more protective of the environment than that embodied within SEQRA.”
Myth 2: The decision by the APA in late 2006 to deem Mr. Foxman’s application complete somehow legitimizes all of the application’s data and information. The applicant argued this all the time during and long before the hearing. It is wrong. The application is a statement about goals, desires, and aspirations. It is an allegation, nothing more or less. The hearing is intended to subject those assertions and allegations to expert scrutiny and the rules of evidence. Those rules say that an applicant must present experts whose testimony is competent, material and relevant. The project sponsor had better come up with experts who can competently and materially defend the allegations in the application, or he or she fails to meet their burden of proof, which leads me to my 3rd myth.
Myth 3: Since Mr. Foxman’s application was deemed complete, and because his hearing lawyer was schooled in the law (he actually was the APA Executive Director at one time), the burden of proof is on other parties to show how the application may fail to meet the statutory and regulatory requirements of the APA. Wrong. The burden of proof is squarely on the applicant. “The burden shall be on the project sponsor to present testimony concerning the matters alleged in the application (emphasis mine)” (Section 580 of APA Regulations). Mr. Ulasewicz tried to switch that burden many times during the hearing, often attempting unsuccessfully to intimidate witnesses about their knowledge of APA law and regulation. “Has so and so expert read the Act?” he would ask. “If he had, he would know that residential development is an allowed use of Resource Management,”etc. Adirondack Wild’s expert, who was a conservation biologist, pointed out that he was not retained to debate whether the Act allows development, but to present evidence about how and where the location, scope and intensity of that development could impact sensitive natural resources.
To go one step further, even an impartial observer – and I readily admit to not being one – would have noticed how poorly Mr. Foxman’s team met its burden of proof about the alleged tremendous economic benefits of the ACR, its alleged vast sales and tax potential, and its alleged immaterial burdens on the community. ACR’s so-called expert witnesses in these arenas often were unfamiliar with the application, or where the data in it came from, or could not disclose material and relevant sources to back up their arguments. I may return to the hearing record in future posts.
Photos: Above, outlook from summit of Mt. Morris, Cranberry Pond and Lake Simond in distance; Below, scene from the hearing in Ray Brook, Judge O’Connell at center.
“It is unfortunate that dredging has proceeded without any guidance from river experts who could provide natural stream dimensions based on a rapid assessment of natural bankfull, pool depth and riffle spacing. Measurements that could be done in a few hours and eliminate years of lost habitat,” stated Carol Treadwell, Executive Director of the Ausable River Association (ARA).
Natural stream dimensions? Bankfull? Pool depth? Riffle spacing? What is this, a how-to manual? A certain amount of assembly required? Or a level of river awareness and fluency that any floodplain community had better strive for? It is understandable why the small streams and rivers in this heavily damaged region of the Adirondacks (twice this year) may be viewed as marauding aliens and enemies which require a serious “talking to” by backhoe. The human and community impacts of the flood are enormous and gut wrenching.
Yet, post World War Two we keep building in floodplains, whether we know we are or not. A favored textbook reads: “The average annual flood damage nationwide… has continued to increase… The use of flood-prone land continues to rise faster than the application of measures to reduce flood damages. This continues to be one of the foremost challenges to land planners – finding ways to control the use of flood-prone areas, and ways of requiring those who seek the advantages of use of floodable areas to assume a fair proportion of the financial risk involved in such use” (Water in Environmental Planning, by Thomas Dunne and Luna Leopold, 1978).
Carol’s quote was submitted for a news release issued this week by a coalition of concerned organizations and individuals who live in these communities, along with a letter to Governor Cuomo seeking an end to floodplain management by bulldozer, and a meeting to assess how best to respond to the altered nature of these waterways in ways that are mindful of people, property, stream health, aesthetics and tourism on which so many of these towns and Essex County depend.
Carol denotes an apparent lack of “river experts” and related oversight of the heavy earth moving equipment moving about our region’s streams during the Governor’s month-long emergency authorization. The Ausable River Association has spent years studying the Ausable. Similarly, the Boquet River Association on the Boquet. NYS Department of Environmental Conservation and Adirondack Park Agency know something about the behavior and morphology of rivers and floodplains. NYS DOT has environmental experts who know how to manage highway rights of way without taking a proverbial two by four to the environment. So, where are they? It was good to read that the Essex County Board of Supervisors is calling on these experts to help them assess and, if necessary, adjust the in-stream work as may be necessary. Governor Cuomo should have had his environmental experts in the field overseeing any stream work a month ago.
Yet, our state agency experts and field managers at DEC, APA, DOT still seem unable to respond in a coordinated, effective fashion, despite the fact that the Emergency Authorization issued by NYS DEC on that fateful Sunday, August 29 states: “This Authorization hereby allows emergency work to occur in navigable waters, streams and wetlands regulated under Environmental Conservation Law Article 15 and Article 24. The work hereby allowed must be immediately necessary to address an imminent threat to life, health, property, the general welfare and natural resources. All work carried out under this Authorization must be conducted in a minimally invasive manner, consistent with the goals of the restoration work. Non‐critical work is not allowed by this Authorization. All work must be undertaken in compliance with the conditions below.”
The emergency authorization and all conditions for working in the rivers is found at the DEC website. Based on what Dan Plumley of Adirondack Wild has observed, many of these conditions are being violated every day, but this assumes that the equipment operators understand the conditions, and that DEC is on-site to explain them, which it appears not to be.
There is probably a strong difference of opinion whether the work to date has been “minimally invasive” and necessary to address imminent threat. At the same time, the workers in the streams and their supervisors are doing all they can with the information and resources at hand. Which gets me back to Carol Treadwell’s quote: “natural stream dimensions based on a rapid assessment of natural bankfull, pool depth and riffle spacing. Measurements that could be done in a few hours and eliminate years of lost habitat.”
What is she talking about? I return to and quote from Dunne and Leopold’s Water in Environmental Planning (1978). Rivers construct their own floodplains, laterally migrate, and deposit lots of sediment in the process. Over a very long process of movement the river occupies each and every position on the flat valley floor, with the river moving laterally by erosion on one bank and deposition on the other. That is the meander that rivers want to achieve as their way of expending energy most efficiently. In fact, really straight stretches of river (absent human channelization) are rare “and seldom does one see a straight reach of length exceeding 10 channel widths.”
Yet, the river does not construct a channel large enough to accommodate flood stages. The bankfull stage referred to by Carol “corresponds to the river discharge at which channel maintenance is most effective, that is the discharge at which moving sediment, forming or removing bars, forming or changing bends and meanders, and generally doing work that results in the average morphologic characteristics of (river) channels.”
The authors Dunne and Leopold continue: “It is human encroachment on the floodplains of rivers that accounts for the majority of flood damage. Because it is a natural attribute of rivers to produce flows that cannot be contained within the channel, the floodplain is indeed a part of the river during such events. It is therefore important that planners know something about these characteristic features, and thus possibly counteract to some degree the emphasis placed on flood-control protection works. More logical is flood damage prevention by the restriction of floodplain use.”
In short straight sections in between meanders, stream pools and riffles alternate in consistent ways due to the creation of gravel bars on the convex side of a meander. “The distance between successive bars averages five to seven channel widths.” The alteration of steep (over the riffles) and less steep water (over the pools) is characteristic of rivers, as is the fact that meanders are steeper than the average straight section. I think this is the “pool-riffle spacing” Carol is speaking of. She may be suggesting that in-stream work should seek to maintain this kind of pool-riffle spacing, and ensure that stream slopes are not severely altered.
The worst thing to do, according to Dunne and Leopold, is to severely shorten a river channel with consequent change in channel gradient. “An imposed change of river slope can cause an instability quite irreversible in any short period of time, and is the most difficult change to which a stream must adjust.” It appears this is exactly what heavy equipment operators did to Johns Brook, and may be doing to other stream sections.
The authors’ conclusions may be ones which Governor Cuomo, DOT, DEC, APA, and Essex County should pay particular attention to: “Among the potential costs or disadvantages accruing from channel modification are: 1. Channel instability or effects of channel readjustment to the imposed conditions; 2. Downstream effects especially increased bank erosion, bed degradation or aggradation; 3. Esthetic degradation, especially the change in stream biota and the visual alteration of riparian vegetation, and of stream banks and channel pattern or form.”
Photos: Johns Brook, Keene, before and after channel dredging and grading by state-funded heavy equipment, photos by Naj Wikoff.
It is heartening to know that Governor Cuomo has twice visited Keene Valley, and other Adirondack communities so hard hit by the hurricane. And to see that Rt. 73’s rebuilding in St. Hubert’s, and along its corridor to Lake Placid has become a high state priority. Clearly, the Governor is doing his utmost to release emergency aid for homes, businesses, roads, bridges and other critical needs.
I am puzzled, however, by the instinct in this Governor to order that environmental permits from agencies like the NYS Department of Environmental Conservation and Adirondack Park Agency be waived. Governor Cuomo announced August 30 that “government needs to do all it can to help devastated communities and homeowners get back on their feet,” but that doing so also means that government must “get out of the way and allow for quick rebuilding and restoration.” It is as if those DEC or APA permits are fifty-foot high obstacles to getting reconstruction or restoration work done, and have absolutely nothing to do with the quality, effectiveness or durability of the work. It is as if DEC and APA field personnel want merely to push papers as obstacles to cleaning up and restoring the communities in which they and their families also live and work. It is as if government is there to only throw money, but not good, experienced minds, at emergency situations. It is as if the quickest action in an emergency is assumed to be the best action.
I disagree with those premises. I don’t think recent history in the Gulf of Mexico oil spill would suggest that the quickest action in an emergency is always the best action. Both DEC and APA staff, for instance, have demonstrated an ability in the past to issue permits from the field, and rapidly in emergency circumstances while influencing decisions which, from an environmental, engineering, economic and other perspectives may save time, money, labor and environmental quality in the short and longer-term. For example, emergency work done in a stream or river bed, or along its banks can be done in ways which appear to help the situation in the short-term, but which actually make matters far worse downstream in the mid or longer-term. Both DEC and APA, as well as the Ausable River and Boquet River Associations and others, are trained and knowledgeable in how rivers work in general and particular (fluvial dynamics), enough to offer practical as well as prudent permit advice which addresses both the immediate and longer-term problem. Where and how to reconstruct may not be as much about butting heads as it is about adding heads from varying disciplines to reach better decisions. APA and DEC staff should be part of that mix.
Of course, Governor Cuomo and his aides might have thought that there are so few DEC and APA regional permitting staff that it would be near impossible to get field involvement or permit decisions made in a timely fashion to address the emergencies across DEC Region 5. If so, I think that sells his own state personnel short. The efficient teamwork at DEC Region 5 and at the APA has been tested often by storms of all kinds in this and past decades, and performed remarkably well – and there has never been a decade I have seen where DEC or APA had enough staff – and there never will be one.
Furthermore, local governments and agencies attempting to reconstruct want clarity about what is required or expected, as much as any regulated business wants to know what is expected of them. The Governor’s announcement of the waiver of permits may have the unintended consequence of injecting confusion into an already confused situation. It cautions that reconstruction, restoration and other work should be sensitive not to unnecessarily harm or damage natural resources. For instance, would a town supervisor or engineer find clarity or confusion in the following words contained in the Governor’s press release:
“Permitting for construction and repair projects in these areas is suspended. When possible, work should be undertaken in consultation with the DEC to ensure that the project will be carried out in a manner that will cause the least adverse impact to natural resources. To consult on environmental impacts in the wake of Hurricane Irene, individuals and businesses may contact the Regional Environmental Permits Office.”
Local government might be forgiven if it misinterpreted these words as “DEC will get out of the way, but rest assured, I had better call them, they sure as heck won’t be calling me, but their eyes will be burning into the back of my head.”
Wouldn’t it better to have the clarity and certainty of regulators working in the field with the authority to both consult on difficult restoration and reconstruction work and to issue field permits for reasonably well thought-out solutions that take environmental conditions into account?
The Governor’s statement releasing communities in this emergency from the burdens of government regulation perversely also contains the following regulatory language: “In an effort to keep overall cleanup costs to a minimum and to reduce the overall impacts from the disaster debris it is important that those conducting the cleanup be mindful to separate out those waste materials which are benign or exempt from regulation, such as tree branches and limbs, from other more environmentally concerning debris during the cleanups. Care should be taken to set aside such materials as household hazardous waste, gasoline containers and propane canisters and other regulated solid wastes that would require special handling.”
In general, I think that waiving environmental permit requirements in an emergency like this in the Adirondack Park, with all the cautions and caveats thrown in, is
• unnecessary to getting good work done reasonably quickly
• insulting to knowledgeable, experienced DEC and APA regional permitting staff
• confusing
• conducive to making quick decisions that may have negative consequences
• inimical to a place as important as the Adirondack Park
I hasten to add that I am ready to be proved wrong or ill informed, and that DEC and APA staff are actually in the field helping their local counterparts where help is needed or requested, with or without permits in hand. I also hasten to add that the Governor’s press release also may have contained helpful information that “DEC is also providing general assistance and guidance to help local communities address damaged facilities, debris disposal and solid waste. DEC has developed guidance for storm-related waste from damaged areas. Responsible parties should contact the DEC regional office for specific project applications.”
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