Morning Read: Did the Adirondack Park Agency gloss over Big Tupper wildlife concerns?

Last month’s decision by state officials to allow construction of the massive Big Tupper resort continues to simmer out there.  A legal challenge could still come, with the deadline for a decision by green groups set for April 1st.

In today’s Adirondack Almanack, David Gibson – co-head of the group Adirondack Wild — points to what he views as a glaring shift in how the Adirondack Park Agency treated wildlife concerns on the 6,200 acre property.

Gibson points to this passage, in official documents prepared by the APA in late October 2011.

“A comprehensive biological inventory of the project site was not conducted, so it is not possible to make specific findings concerning impacts to habitat from the proposed project or to identify the presence or location of specific areas on the project site that should be prioritized for protection.”

Gibson argues that just a few months later, the APA was sounding a very different tune.  In official documents prepared in January 2012, that paragraph is deleted and replaced with this:

“Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures. In addition to reviewing historical records for threatened and endangered species, qualitative biological surveys including on site visual assessments as defined in Agency guidance ‘Guidelines for Biological Surveys’ were completed during site visits. Other than identifying the deer wintering area as a key wildlife habitat, no other wildlife habitat was identified as containing threatened, endangered or species of special concern on the project site.”

During debate and discussion by the APA commission over the last several months, it became clear that wildlife surveys on the property were rudimentary at best, a fact that prompted a lot of concern even from board members who ultimately voted Yes.

State officials reported that when an independent scientist visited the property, a significant number of new amphibians were identified in a single day.  (The developer’s review team failed to identify a single amphibian.)

APA board member Judith Drabicki, who represents the Conservation Department, pointed out during public discussions that DEC guidelines for evaluating endangered species concerns are significantly more rigorous than the methods used by the APA.

This may seem like yesterday’s news.  But the issue Gibson raises could inform whether or not green groups sue to challenge the Big Tupper permit.

These questions could also be key to any discussion of reforming the Park Agency’s procedures for reviewing big projects in the future.

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24 Responses to “Morning Read: Did the Adirondack Park Agency gloss over Big Tupper wildlife concerns?”

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  1. Ken says:

    Does a bear go in the woods?

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  2. Pete Klein says:

    I hope there are not any lawsuits. I hate lawsuits. They cost the tax payers money.

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  3. Yoda says:

    Brian, Did the APA gloss over wildlife concerns? Absolutely. They also glossed over and ignored any and all concerns, especially the economic ones facing the taxpayers of Tupper Lake if the financing of this fiasco includes a PILOT to pay off the developers infrastructure expenses with future tax revenue. The developers have a very poor financial history and have problems paying school, town, village, county taxes as well as federal income taxes. The town officials in Tupper Lake would be well advised to be very careful in negotiating any PILOT arrangement with the ACR.

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  4. How can this process last 8 (?) years and not explore a significant question like this? Was the APA being obstructed by Foxman and if so, why was it allowed? Is the APA being starved of resources so it can’t do its job? Is the APA simply incompetent? I’m not sure who’s to blame, but something’s wrong here.

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  5. Paul says:

    If they are planning to sue Dave should not be putting some of the basis for their complaint on a blog. Maybe they don’t plan to sue? If they do their lawyer should advise them to keep a lid on it. The court of public opinion has no bearing on this matter if it comes to a lawsuit.

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  6. Paul says:

    What is the precedent? Has there been extensive wildlife surveys done on other class A projects?

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  7. Paul says:

    Yoda, The town also needs to permit the project. You know that you are a jedi master!

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  8. Yoda says:

    Paul, yes the town also needs to permit the project, my concern centers around the town leaders willingness to ignore any and all warning signs with the developers financial background and their current financial difficulties. They appear to be willing to grant any wish/demand the developer requests. The PILOT is the biggest problem facing TL taxpayers, if it goes forward as proposed.

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  9. Walker says:

    It seems possible to me that the sinister-sounding October to January shift was simply the result of someone pointing out that the comprehensive biological inventory they would have liked to require wasn’t actually something that they legally could require. I recall a lot of talk around that time to the effect that the APA act needed tightening. Similarly, Yoda, I suspect that they have no basis upon which to consider the financial history of applicants. I could be wrong…

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  10. Paul says:

    “Paul, yes the town also needs to permit the project, my concern centers around the town leaders willingness to ignore any and all warning signs with the developers financial background and their current financial difficulties.”

    Then it is the tows fault not the APA’s if things go bad.

    Walker, I think you are right. The financial aptitude (for lack of a better word) of the developers to make it happen is not really a concern for the APA. I don’t see that as big part of their mandate. That could change if the legislature thinks that the APA act should require more in that regard. I have had a few APA permits they never asked me if I could afford the projects. One I really couldn’t but I did it anyway!

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  11. Why says:

    The APA board is not unlike the U.S. supreme court (seat(s)), and as such, this is a much more conservative and pro-development group then in the past. I think the economic down-turn is a natural pendulum swing that contributes to this. However, the APA staff also seems, either more conservative, or more driven that way by the hierarchy. I heard the explanation as to why this permit was deemed complete during the adjudicatory hearing by both Mr Spada and Mr. Sangenberger, and I didn’t buy it. It was a very slow, fast track to get to a commisioners vote where approval was a given.

    Mr Gibson’s article is very good and I can only say that anyone who sat through the Adjudicatory hearing versus the board hearing, heard very different stories. The commisioners ignored most of the non APA staff testimony and went with their “gut” instincts in approving the project. It is a shame. This project could have been a model of a proper “green” development. Instead we are left with a project that is less then optimal in terms of impacts and lingering questions to what those impacts are and will be.

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  12. Why says:

    I think there is a 60 day time line for a law suit to the APA decision but a good tactic might be to challenge the PILOT in court. Since that would affect all county tax payers and apparently, will not be issued for some time and affects (Franklin county) your taxes it is more palatable in this political atmosphere then an environmental law suit. I don’t think, based on their finances and testimony, that this project has any chance for development without the PILOT. Perhaps that is a better way to try and stop the development then the permit application itself.

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  13. Paul says:

    “The commisioners ignored most of the non APA staff testimony and went with their “gut” instincts in approving the project.”

    Walker, I agree with this. I think that ism part of the problem at times. The ability for the board to use this “undue adverse impact” definition gives them the ability to be strict if they want to be and lenient if they want to be. The whole process should be more objective with clear guidelines of what you can and cannot do.

    I don’t think that it has anything to do with being “conservative or pro-development” (not sure exactly what you mean by “conservative”?). There are more people that want to build under what the rules allow. That isn’t caused by the board it is caused by the applicants. If they are willing to wade through the process they can do what they are allowed to do by the statute. The regulatory agency is never going to be able to stop development only make sure that it abides by the regulations.

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  14. Paul says:

    “Perhaps that is a better way to try and stop the development then the permit application itself.” It is good to see someone admit that the object for some is to stop the development. Even Dave’s groups has not made that claim, although I suspect that is their first choice. It is best to be honest about what kind of outcome you are looking for. Don’t hide behind this notion of there “is a better way to do it stuff”, or “we just want to make sure the frogs are not going to be negatively impacted”. It is always better to just speak your mind.

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  15. Why says:

    I think Adk Wild has clearly stated they are opposed to the project. Perhaps in a different form they would be supportive, but certainly not as outlined in the permit. I think they have been honest.

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  16. Will Doolittle says:

    Isn’t protecting wildlife and the natural environment in general inherent in the APA Act? Are we going to require separate wildlife assessments for every project that abides by the APA Act, as this one does? It would be different if the developers were looking for a variance. They are following the law, which was written to preserve the natural environment of the Adirondack Park. If the law is insufficient, there is a process for changing it. But it is unfair to say, to anyone, “We’ve decided, partway through this process, the law isn’t meeting our needs and, even though you’re following it, we’re going to ask more of you.”

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  17. Paul says:

    Why, like you say they are have said they are supportive of a modified permit. Do you really think this is true? Don’t you think they would prefer no development based on many of their comments?

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  18. Why says:

    I didnt hear many complaints about the clustered development around the ski hill. The great camp lots and Carnberry pond were the issues. If those were redisgned I think Adk Wild would have been happy but I don’t know Dave well and have never met Dan. The Adk council was appeased with the APA permit conditions even with the great camp sprawl.

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  19. Paul says:

    why, I am just confused why any environmental organization is supportive of any kind of back country development even if it is clustered??

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  20. Why says:

    any,.. any…..that includes alot. Some would. I am sure some do. Sorry your confused.

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  21. Paul says:

    Why, Thanks for the concern. For example the Adirondack Council claims in most of their press that they support development clustered in and around hamlet areas. This project includes development on resource management land that is anything but clustered, it surprises me that they are not opposed to this type of development. You don’t find that odd?

    By “any” I mean “any” in the back-country when there are places that you can build with much less of an environmental impact.

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  22. Because says:

    Resource Mgt land is zoned, I believe, some 44 acres per home. So this project has some great camps on several hundred or even 100 acres. I have a hard time saying they cannot do that. It would seem a big win for environmental types to get only one home on such sites vs one per 44 acres, no? And well within any private land use rules. Back country development cannot be legally clustered. Maybe that is wrong but that is the rule and the developers are well within the rules.

    If any/all development on resource mgt lands was banned, wow, that would be pretty shocking and I doubt it would get much serious support.

    I do agree that the financials of the project and PILOTs are iffy but these are not questions for the APA – they are questions for Tupper Lake village government, as they should be.

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  23. Paul says:

    Because, I agree with you on most points. Especially that this permit (s) restricts the land for future development far more than it was before the permit was granted.

    I think that development can be “legally clustered” on RM lands. That is what the Brandon Park folks have done on their land with a permit they received a few years back to build a large number of single family dwellings. The are putting them all at one end of a lake. The APA act gives the agency all sorts of leeway. Look at their agenda today in Ray Brook they are probably going to allow 50 acres of land that was RM be changed to Rural Use. They are also granting a number of variances for shoreline setbacks.

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  24. Susan says:

    My understanding from following the adjudicatory hearings and this falls APA proceedings in the ADE is consistent with Walker’s comments above. “A comprehensive biological inventory of the project site was not conducted . . . ” AND APA regulations do not require such a survey. Therefore the APA very sensibly used it’s own guidelines in making their decision to permit the project. So “Site investigations to evaluate wildlife and wildlife habitat on the project site followed standard Agency guidelines and procedures.”

    It would seem to me that green groups could have a more positive impact on conservation in this park that we all love if they used their time and resources to support an amendment to the standard APA guidelines rather than pursue a lawsuit to challenge the APA decision.

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