On June 15, 2023, the Adirondack Park Agency (APA), which oversees large or environmentally sensitive developments in thee Adirondack Park, approved a variance application for a commercial marina located in and around wetlands in Crescent and Ampersand Bays on Lower Saranac Lake in the Town of Harrietstown, Franklin County.
The project requires the construction of new docks, covered dock structures, pilings driven into the bed of the lake, as well as the dredging of wetlands. Such activities in wetlands require a wetlands permit from the Agency. The APA however, abrogated its duty to apply the Freshwater Wetlands Act, the APA Act, and the APA wetlands regulations, and has given the green light for the project to proceed without a wetlands permit.
Adirondack Park advocates say the failure to require a wetlands permit is particularly egregious given that the APA’s prior wetlands permit for this project site was overturned by the New York State Supreme Court Appellate Division weeks before the Agency acted on the variance application.
On March 2, 2023, the Appellate Division, Third Department, in Thomas Jorling vs Adirondack Park Agency, New York State Department of Environmental Conservation, and LS Marina, LLC, annulled the Agency’s wetlands permit for the project because the Agency “incorrectly interpreted its wetland regulations.”
During the prior project review, APA assigned an incorrect, less protective value rating to the Ampersand Bay wetlands. The Court found that the wetlands should have been evaluated using the Value 1 rating, which is the most protected category of wetlands.
“Rather than review the project against the value one wetlands criteria, the APA staff and the applicant colluded during secret meetings to devise a strategy to conduct an end-run around the decision. The APA failed to uphold its statutory duty to protect the natural resources of the Adirondack Park,” said Peter Bauer, Executive Director of Protect the Adirondacks.
The variance granted by the APA authorizes the placement of covered dock structures within the shoreline setback area where structures are otherwise prohibited by Agency regulations. The APA required a variance for covered dock structures in Crescent Bay, but failed to require a variance for those in Ampersand Bay. The APA’s issuance of the variance for structures in Crescent Bay failed to satisfy the variance criteria advocates say, and the failure to require any variance for structures in Ampersand Bay was arbitrary and capricious.
Adirondack Wild: Friends of the Forest Preserve and Protect the Adirondacks both filed lawsuits in State Supreme Court in Warren County to contest APA’s refusal to require a permit for Value 1 wetlands. The lawsuits assert that decision violated APA’s freshwater wetland law, and regulations that have been in effect since 1983. The Article 78 papers are available at Protect the Adirondacks website and online at the New York State Court Electronic Filing (NYSCEF) website.
According to APA wetland regulations, all development in Value 1 wetlands must preserve the entire wetland and not result in loss of any part of the wetland. APA’s website says the Agency has “stricter standards for activities in high value wetlands… development is generally prohibited in wetlands with a value rating of ‘1.’”
In its June 15 order approving the marina, APA made no reference to the court’s prior ruling or to that stricter standard of wetland review. While APA acknowledged these were Value 1 wetlands and that there would be some impacts on those wetlands from the project, it ruled that the project had mitigated enough impacts and required no permit application and agency review.
“On the 50th anniversary of the APA Act and for the first time to our knowledge, APA has ignored potential development impacts upon the most sensitive wetlands in the Adirondack Park,” said Adirondack Wild’s managing partner David Gibson.
“It is astonishing and disturbing when an agency charged with protecting Adirondack wetlands simply chooses to ignore its job to safeguard such significant natural resources. Wetland protection is core to the APA’s job responsibilities assigned to it by the state legislature. In this case the agency shrugged at its lawful duties, regulatory responsibilities, and the Appellate Court’s decision. That legal carelessness cannot be tolerated or other wetlands elsewhere in the Park will be at immediate risk. We take this action as a last resort and only because the APA’s arbitrary, unlawful actions harmful to Park wetlands compel us to do so.”
Photo of Lower Saranac Lake Marina wetlands provided by Protect the Adirondacks. Other photos of the project area can be found here.