Appellate court tosses marina permit over APA wetlands rules

APA acknowledges far-reaching impact of wetlands decision; court offers mixed verdict over carrying capacity studies

By Zachary Matson

A state appellate court on Thursday invalidated an Adirondack Park Agency permit for a marina on Lower Saranac Lake in ruling that the agency incorrectly applied its wetlands regulations.

While the decision from the state Supreme Court Appellate Division, Third Judicial Department, called the state’s failure to conduct a carrying capacity study of the lake “inexplicable,” the court ruled that that failure did not prevent APA from determining the project would not have an adverse impact on the park’s surrounding environment.

Instead, the decision to annul the permit turned on how the agency grants wetlands ratings when it evaluates sites seeking a permit.

APA spokesperson Keith McKeever in a statement Thursday acknowledged the decision “invalidated the agency’s interpretation” of part of the wetlands regulations and that the ruling “will affect numerous shoreline properties around the park.”

Thomas Jorling, a former Department of Environmental Conservation commissioner, in 2020 challenged the permit APA granted the Lower Saranac Marina to expand a marina. The marina expansion included an annex site across the water from Jorling’s lake house.

Jorling in a statement Thursday cheered the court’s unanimous decision and urged the state agency to carry through with carrying capacity study. 

“The board of the APA, if it is to have any credibility, should take seriously the admonition and require a carrying capacity study before any further consideration of this project,” Jorling said in a statement. “The APA, the agency entrusted to protect the natural resources and character of the park, must do better. This case is a clarion call to the board to make that happen.”

In the short term, though, the decision may be more consequential to how the APA reviews wetlands sites, knocking down the regulatory interpretation the agency said it has long used when judging wetland with multiple high-value characteristics. 

The agency regulations list two dozen wetlands characteristics grouped into six categories known as “factors” and gives each a value rating from 1 to 4, with one considered the highest-value rating. Characteristics are grouped into factor categories such as wetland covertype, value to productivity or diversity, connection to surface water systems, geological features, presence of threatened or endangered species and social factors. One wetland can contain multiple characteristics within multiple factor categories. 

APA biologists determine a wetland rating based on its combined characteristics. If the wetland contains “multiple values based upon more than one factor” in the list of characteristics, a separate regulatory provision comes into play. If three or more of the wetland characteristics are rated 2, or “high value,” the associated wetland will be rated 1, the highest value, under the regulations.

If a wetland is rated 1, the proposed activity would have to meet the most stringent development standard: “(The project) would be compatible with preservation of the entire wetland; and would not result in degradation or loss of any part of the wetland or its associated values.”

Citing a longstanding regulatory interpretation, the state’s attorney in court said the agency only elevates a wetland to value 1 when it contains characteristics from at least three factors.  

Judges during oral arguments pressed the state on why characteristics from two factor groups would not meet the regulatory language “more than one factor.” Assistant Attorney General Joshua Tallent at the time said the more stringent reading of the wetlands regulations would render broad areas of wetlands inaccessible to “any human activity.” 

The court in its decision said that the agency’s interpretation of “more than one factor” to apply only in instances when at least three factors were involved “conflicts with a plain reading of the regulations.”

“The phrase ‘more than one,’ in our view, means precisely what it says, and does not, as APA contends, mean ‘a minimum of three,'” according to the decision.

The court overturned the permit decision on that basis. But it also parsed an argument over whether the state was required to conduct a study of the uses the lake could sustain prior to granting the permit.

Matt Norfolk, attorney for the marina, on Thursday said the developer planned to submit for a new permit and expressed confidence that the plans would still satisfy requirements even if the wetlands on site were rated as value 1.

“Agency staff and the board will look at this and if they employ the value 1 to the annex wetlands, we are confident the project will be approved,” Norfolk said. “Value 1 or value 2, it’s not going to be a concern.”

In a statement Thursday APA signaled the decision could be far reaching.

“The Appellate Division, Third Department, invalidated the agency’s interpretation of one of its wetland regulations. This interpretation was adopted in 1984 by agency executive staff one year after drafting and adopting the regulations, and has been applied consistently since,” APA said in the statement. “The court found that wetland value ratings should be assigned in a manner different from this 1984 interpretation. This ruling will affect numerous shoreline properties around the Park.”

Court affirms carrying capacity mandate –  but not in marina permitting decision

The carrying capacity argument centered on a clear reference in the Adirondack Park State Land Master Plan mandating the state to conduct a “comprehensive study of Adirondack lakes and ponds… to determine each waterbody’s capacity to withstand various uses, particularly motorized uses.” 

Some environmental groups lined up behind the idea that the state could not approve a marina expansion before conducting the capacity study of the lake, filing briefs to expand on the argument. The state and marina developer argued the state land master plan did not apply in private development permitting matters.

The court said that the Adirondack master plan and the lake’s unit management plan clearly mandate a carrying capacity study of the lake, calling the state’s failure to conduct one, “wholly unexplained and, indeed, inexplicable.”

But the decision also accepted the state’s argument that the failure to conduct a carrying capacity study should not influence the outcome of the particular decision to grant a permit to the marina. The decision said APA’s analysis of whether the project would “adversely affect the natural, scenic and open space resources of the park” and water resources was sufficient to meet its statutory and regulatory requirements. The agency in part made that determination because the developer had the right to rebuild the old boathouses and docks in their current footprint, which would have been worse for the environment than the project proposal the agency ultimately approved with various environmental protections included. 

It remains to be seen if the court would ever find that the state’s failure to conduct a capacity study could be a factor in rejecting a permit decision. 

Norfolk said if the court wanted to more closely tie the carrying capacity study requirement to APA review of private project, it would have been more clear in that position.

“The court admonished the state, but then it went on and said APA looked at these factors, and it’s sufficient, it satisfied the standards to approve the project without the carrying capacity consideration,” Norfolk said.

Jorling’s attorney, Claudia Braymer, said she did not think the court’s decision foreclosed future arguments that relied on the state’s failure to study carrying capacity to challenge a private project.

“I definitely think this is a clear message from the court that APA does need to do these carrying capacity studies going forward,” Braymer said.