A clear-cut conundrum: State policy on tree removal ambiguous

Enterprise file photo — Michael Koff

The Gabriel Terrace neighborhood in March 2020 after Pyramid took down eight acres of trees to make way for a Costco, whose construction has been stymied by three lawsuits over Pyramid’s then-proposed projects for Rapp Road and Western Avenue. 

GUILDERLAND — In March 2020, Pyramid clear-cut 8 acres of trees at the corner of Western Avenue and Crossgates Mall Road to make way for a Costco Wholesale on the site. 

The move sparked immediate protests from residents, which was followed by a federal lawsuit that claimed the clear-cutting violated the federal Clean Water and Endangered Species acts as well as the state’s Environmental Quality Review Act.

Ultimately, the lawsuit, like two that followed, was unsuccessful in stopping Pyramid’s plans for the area. 

But the federal lawsuit isn’t a complete loss, as the basis of the action appears set to become town policy, if not state — depending on who you ask.

Since the stumps stayed in the ground after the trees were felled in March 2020, the site wasn’t considered to have been disturbed in the eyes of the state. Jacqueline Coons, Guilderland’s chief building and zoning inspector, contacted the state’s Department of Environmental Conservation, Supervisor Peter Barber told The Enterprise at the time, and was told tree-cutting is not a physical alteration of the land and therefore not illegal.

During a recent planning board meeting, Town Planner Ken Kovalchik was asked why the owner of 6256 Gardner Road, LLC was allowed to clear-cut parts of the land before the board had a chance to review its application. 

“At that time, our town stormwater coordinator had been out on the site,” Kovalchik explained. “Because [the] stumps hadn’t been removed, he made a determination that there were no violations.” (Kovalchik also said the applicant had cut down the trees prior to a subdivision application being filed.)

Kovalchik continued, “And historically, DEC has kind of opined that if you cut trees, but don’t remove the stumps, they don’t consider that land disturbance,” which was the case at 6256 Gardner Road. 

The plaintiffs in the federal lawsuit wanted to stop further construction activities until there had been proper environmental review. The group’s attorney, James Bacon, told The Enterprise in April 2020, “I’ve never seen a lead agency allow clear-cutting before SEQR review.”

He said with the proposed wind turbine manufacturing facility on Beacon Island at the Port of Albany, it was his “understanding, based on what happened there,” the DEC “went back and looked at their definition of land disturbance, and made some revisions to that definition.”

Kovalchik said what was inserted into the state definition of land disturbance was, “even if you used mechanized equipment and left the stumps in place, they now consider that land disturbance, where previously they did not.” A mechanized feller buncher was used to clear-cut the eight acres of trees in the Lawton Terrace neighborhood in 2020.  

Kovalchik, using a hypothetical situation, explained to Guilderland Planning Board members, based on town staff discussions with DEC, if an applicant cuts down trees and then files an application, “six or 12 months later,” the lead agency can then go back and examine the downed acreage and include it “as part of the land disturbance that is then proposed with the development.”

And, depending on the amount of disturbance, Kovalchik said, that could push an applicant from having to submit a basic stormwater pollution prevention plan to performing a full SWPPP. Current town rules state a SWPPP is needed if there is disturbance from an “activity, including clearing, grubbing, grading, excavating, soil disturbance or placement of fill, that results in land disturbance of equal to or greater than one acre.”

The Enterprise asked the DEC about the changes Kovalchik spoke of and was told by email, “DEC has not made any recent regulatory changes regarding tree-clearing or revisions to DEC’s definition of land disturbance.” 

And on the clear-cutting issue at the Port of Albany, the agency said, “after a thorough review of the Port’s request, on March 30, 2022, DEC conditionally authorized coverage for the Port under the [State Pollutant Discharge Elimination System] General Permit for Construction Activities for tree clearing.”

The Port of Albany had about one of six permits it needed when the DEC gave it the OK to start tree-clearing. The Times-Union reported in July that the port had received a special waiver to start the tree work.

The Enterprise went back to Kovalchik with the DEC’s response about not making any regulatory or definitional changes related to the tree-clearing. 

“That’s an interesting response from DEC considering the guidance they provided … DEC informed the Town during this April conference call that the use of mechanized equipment to remove trees, even if the stumps are left in place, would now be considered land disturbance,” Kovalchik wrote.

Kovalchik then repeated his earlier observation about the DEC previously not considering the “use of mechanized equipment when removing trees, when stumps are left in place, to be a land disturbance.”

If the DEC is reversing course, Kovalchik wrote, it would be helpful if the agency reached out to municipalities, “because many are changing how they will enforce tree cutting based on the guidance provided from DEC in April.”

Kovalchik isn’t alone in his attempts to obtain from a bureaucracy an answer about stormwater. Residents of the town of Colonie recently wrote to the stormwater coalition describing issues they had with the town’s stormwater management practices.

In May, members of SAVE Colonie: a Partnership for Planning were seeking answers to questions on the same topics discussed during the Sept. 14 Guilderland Planning Board meeting, such as whether Colonie town law disallowed site alterations on parcels under an acre while a project is under review. The town responded by telling SAVE Colonie where its question could be directed. 

SAVE Colonie then noted what it said were inconsistencies with remarks made by town officials  about when the size of project and when a stormwater review is warranted, and asked if there had been a change in policy. 

The town responded that stormwater-office employees review “all projects regardless the size of land disturbance to verify that they meet the Town of Colonie stormwater regulations.”  

And responding to the question about whether site disturbance is allowed while a project’s SWPPP is being reviewed, Colonie said, a “site cannot be disturbed over an acre without a grading permit or without permit coverage from NYSDEC.”

The disconnect between local municipalities and the DEC appears to have started sometime in March, when area stormwater program coordinators met for their monthly Stormwater Coalition of Albany County meeting. 

The coordinators “routinely meet to review all aspects of implementing the MS4 Permit,” according to the coalition’s director and program coordinator, Nancy Heinzen. An MS4, or municipal separate stormwater sewer systems, permit requires “permittees to develop and implement a comprehensive Storm Water Management Program (SWMP),” according to the Environmental Protection Agency, “that must include pollution prevention measures, treatment or removal techniques, monitoring, use of legal authority, and other appropriate measures to control the quality of storm water discharged to the storm drains and thence to waters of the United States.”

At the March meeting, local stormwater program coordinators received a handout that “was an attempt to bring everyone up to speed on the most current definition of Construction Activity(ies) in the most current [State Pollutant Discharge Elimination System] General Permit for Stormwater Discharges from Construction Activity (GP-0-20-001),” according to Heinzen.

SPDES Permits are updated about once every five years, Heinzen told The Enterprise by email, “and changes in definitions can happen from one permit to another.” It can be difficult for municipalities to keep up on the proposed changes, even after receiving follow-up information from the DEC regarding the specifics of a change to a definition, according to Heinzen. “Also, they may remember something about one permit, which is since out of date and not realize that something has changed.”

The March handout was an attempt to consolidate all the information available about the permitted definition of construction activity, in addition to a “related explanation from DEC,” Heinzen wrote The Enterprise. 

The group discussed the substance of the handout, “but how each individual interpreted the content and related discussion is anyone’s guess,” she wrote, adding she couldn’t recall the specifics of the conversation.

And there’s an additional issue, according to Heinzen: The information that actually gets shared by stormwater program coordinators with their respective municipalities is not known. 

“But I do know that once a permit definition is finalized it stays that way for the duration of the permit,” wrote Heinzen. “To change anything in a permit, once finalized is an arduous, time consuming, legally prescribed process. Changes are driven by expiration dates in the permit itself.”

New Scotland Supervisor Douglas LaGrange is chair of the coalition’s board of directors. 

He couldn’t recall specifics but thought there might have been a short discussion having to do with the new MS4 permit. 

“Oftentimes [there’s] a lot of speculation when it comes to what [a new MS4 permit] is going to say,” LaGrange said. “So my first thought was maybe someone had read or heard and” was recounting proposed changes in an earlier draft of the permit, which might have included “some definition changes, including [site disturbance], but I honestly can’t tell you.”

Whatever the outcome, Guilderland is already ahead of the game when it comes to enforcement. During the Sept. 14 planning board meeting, Kovalchik noted the town is considering its own tree-preservation law. A Sept. 20 public hearing on that bill was continued to Nov.1.

Local Law No. 9 of 2022 proposes that, “No person shall remove,” which definitionally includes taking a stump out of the ground, “clear or cut all or substantially all of the trees, shrubs or brush on any area of land in the Town measuring 10,000 [less than a quarter acre] or more square feet except pursuant to and in conjunction with an approved subdivision plan, approved site plan, approved special use permit, building permit, or part of a recognized agricultural practice.”

That particular sentence is one that Supervisor Peter Barber said the board would rework after concerns were raised at the Sept. 20 hearing about 10,000 square feet being too small of a designation; the example was given that someone owning many acres may want to cut firewood. Councilman Jacob Crawford suggested “agricultural practice” might need to be further defined.

The Enterprise went back to the DEC with Kovalchik’s response about the April phone call with agency employees and was told, “Each year, DEC publishes a Regulatory Agenda in the State Register and on DEC’s website. The agenda is inclusive of three-year and five-year reviews for various DEC programs, and is available for public review on DEC’s website.

“DEC’s [State Pollutant Discharge Elimination System] General Permit for Stormwater Discharges from Construction Activity defines “construction activities” to include, among other things, ‘logging equipment operation, the cutting and skidding of trees, and stump removal and/or brush root removal.’ The definition of ‘construction activities’ was carried over from the prior five-year General Permit and has not changed.”

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