Lack of research for lakes’ carrying capacity at heart of lawsuit
By Zachary Matson
Appellate Division judges last week pressed a state lawyer on why the Adirondack Park Agency has failed to study the capacity of lakes in the park and whether the agency is fulfilling its wetlands protections.
The questions came Thursday in a case challenging a proposed marina expansion on Lower Saranac Lake. Former Department of Environmental Conservation Commissioner Thomas Jorling, who owns a lakefront property near part of the marina, appealed a lower court ruling holding up a 2020 APA permit.
During a hearing before a five-judge panel of the Appellate Division of state Supreme Court’s Third Department in Albany, Assistant Attorney General Joshua Tallent asserted that the Adirondack Park State Land Master Plan did not apply to the permitting decisions of private properties.
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“The State Land Master Plan, as the name indicates, applies to state management decisions on state-owned-publicly-owned lands, on the Forest Preserve,” Tallent told the judges. “It just doesn’t apply to private lands like those at issue here.”
Judge Elizabeth Garry, the court’s presiding justice, pushed back.
“I’m having a hard time conceptually with that,” Garry said. “Separating that out, like here’s the private land, but the impact is on all the immediately adjoining public land.”
Tallent said APA weighed the environmental harms and benefits of the project, including by reviewing a boat traffic study commissioned by the developer that showed a marginal boost in traffic, what Tallent called a “de minimis” increase.
He said the agency relied on a “balancing test” that also took into account benefits of the project like erosion control, wastewater management improvements and the removal of old structures to determine the project would not have an “adverse impact” on the Adirondack Park.
Claudia Braymer, the Glens Falls attorney representing Jorling, argued the master plan was inextricable from the laws and regulations governing the agency’s permitting process.
“There are two plans and they work together,” Braymer said. “The argument that they can just divorce the review of a private project from the review of the water resources of the Adirondack Park is wrong.”
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The case in part centers on the idea of “carrying capacity” studies to examine human use and ecological factors on lakes and ponds. Jorling and environmental groups not party to the case point to language in the master plan adopted in 1972 that instructs DEC to conduct “a comprehensive study of Adirondack lakes and ponds… to determine each water body’s capacity to withstand various uses,” especially motorized uses.
During Braymer’s opening argument, Garry asked how many carrying capacity studies the state had conducted throughout the park.
“Have they performed any?” the chief judge asked.
The state acknowledged in court records that it has not completed a carrying capacity study at Lower Saranac Lake or on any Adirondack lake.
Tallent suggested the agency had considered a “carrying capacity study” by reviewing an analysis of the increase in boat traffic that would result from marina construction submitted by the developer. That study estimated the project would result at most in about 12 additional boats on the lake at any specific time.
“This study speaks for itself, it is a carrying capacity study of Lower Saranac Lake,” Tallent said. “There was no reason why APA couldn’t rely on it.”
Braymer pointed to the unfulfilled objective of unit management plans that the carrying capacity of Lower Saranac be analyzed and argued APA was “ignoring its own scientific findings and management requirements.” She said APA had no baseline boat use information on which to review the increase from the marina.
The judges also focused on whether the agency upheld its mandate to review impacts to wetlands. In questions to both Braymer and Tallent, Judge Michael Lynch focused on how the agency enforced its regulations for classifying the value of wetlands at the project site.
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The agency considers two dozen wetlands characteristics organized into six groups, scoring the different characteristics present at a particular wetland site. Lynch pressed Tallent on why the agency used an interpretation of the regulations that made it more difficult to earn the highest rating instead of a plain-reading approach.
Tallent said if the agency used the more stringent interpretation of the regulation it would render broad areas of wetlands inaccessible to “any human activity.”
Matt Norfolk, a Lake Placid attorney representing the marina, focused his brief argument on refuting Jorling’s standing to challenge the permit, asserting that Jorling failed to demonstrate a discreet harm and proximity to the marina.
“A plaintiff can allege anything, but there has got to be some support to that, and I don’t see that in the record,” Norfolk argued.
Garry extended the length of the hearing to over 30 minutes and noted the complexity of the case. Ultimately, Jorling is asking the court to annul the APA permit and ask the agency to reevaluate it. Decisions of the Appellate Division can be appealed to the Court of Appeals, the highest court in the state.
In an interview after the hearing, Jorling said he was “cautiously optimistic” after hearing the questions from the judges and argued carrying capacity analysis was critical to protecting the park.
“We see the impacts,” Jorling said. “The High Peaks, they haven’t done one there and overuse is rampant. The lakes are also being subject to overuse, and why they aren’t doing carrying capacity studies is at least inept, and I’ll leave it at that.”
Jorling, who served as commissioner from 1987 to 1994, said during his time in state government the law outlining the carrying capacity requirement had been “recently incorporated” and that the agency had started planning for how to perform them.
“We had discussed mechanisms to initiate those that apparently didn’t get carried on in later administrations,” he said.