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Benincasa, Michael

October 23, 2006



Applicant: Michael Benincasa, 14 Wilson Street, East Patchoque, New York 11772.

Project: Applicant has applied (Application #1-4722-0251/00001 & 1-4722-02451/00002) to the New York State Department of Environmental Conservation ("Department") for a tidal wetlands permit and a freshwater wetlands permit to allow construction of a single family dwelling, deck, driveway, septic system and retaining wall at the northwest corner of Beaver Drive and Doe Place, Mastic Beach, Town of Brookhaven, Suffolk County, New York.

DEC Staff opposes the issuance of the tidal wetlands permit and the freshwater wetlands permit on the grounds that the single family dwelling and associated structures, which are proposed to be located in the freshwater wetlands adjacent area and directly in tidal wetlands, will result in the destruction of valuable wetlands and habitat for fish and wildlife, have the potential to impair surface and groundwater quality, and will have adverse impacts on the aesthetic value of the wetlands on the lot. Further, residences so located may have several negative impacts on wetlands such as increase in stormwater run-off, introduction of pesticides, septic effluent and excess nutrients, and an increased pressure to continue development beyond the initial construction. Additional effects foreseen are decrease in the ability to prevent erosion and collect run-off with all these changes having the potential to negatively impact the adjacent tidal wetlands and Moriches Bay.

Permits: The project would require a freshwater wetland permit pursuant to ECL article 24 and 6 NYCRR part 663 and a tidal wetlands permit pursuant to ECL article 25 and 6 NYCRR 661.

In addition, the project will require two permits not issued by the Department, one permit from the Town of Brookhaven, and a second permit from the Suffolk County Department of Health.

SEQRA Status and Notice of Complete Application: In this Type I action, the Town of Brookhaven acting as lead agency has issued a Positive Declaration. A Draft Environmental Impact Statement was prepared and accepted by the Town. By letter dated July 3, 1997, the Town indicated that a Final Environmental Impact Statement was prepared and accepted. A Notice of Complete Application was published in the Environmental Notice Bulletin on April 1, 1998.

Legislative Hearing: All persons, organizations, corporations or government agencies that may be affected by the project are invited to comment on the application. For this purpose, a legislative hearing to receive unsworn comments will be held on November 28, 2006 at 10:00 AM at the Patchogue Village Hall, 14 Baker Street, Patchogue, New York in the Village Hall Board Room.

It is not necessary to file in advance to speak at this hearing. In lieu of oral comments, written statements may also be submitted either by mail or at the hearing itself. Mailed written statements must be received by the assigned Administrative Law Judge ("ALJ"), address given below, on or before November 28, 2006. Written statements will be considered equally with oral comments made at the legislative hearing.

This location is reasonably accessible to persons with a mobility impairment. Pursuant to the State Administrative Procedure Act ("SAPA"), interpreter services shall be made available to deaf persons, at no charge, upon written request to the administrative law judge named below at least five business days prior to the hearing.

Issues Conference: A pre-adjudicatory hearing issues conference will be held at the same location immediately following the legislative hearing. The purpose of the issues conference is to define, narrow, and resolve, if possible, the issues that are proposed as subjects for adjudication. The known issues include Department staff's basis for the denial of the application. Other issues may be proposed for adjudication and must be both substantive and significant in accordance with 6 NYCRR 624.4(c). It is important that any persons requesting party status appear or be represented at the issues conference in order that all proposed issues may be fully discussed.

Party Status: Party status to participate in the adjudicatory hearing will be accorded only to those persons who file a written petition requesting party status. The petition must include the facts intended for presentation pursuant to 6 NYCRR 624.4(c) and 624.5(b). Any petition must fully identify the proposed party together with the name(s) of the person(s) who will act as the proposed party's representative(s), the proposed party's environmental interest in the proceeding, any interest relating to the statutes administered by the Department relevant to the project, whether the request is for full party status or amicus status, and the precise grounds for opposing or supporting the project. Mere opposition to the project is not a sufficient basis to be granted party status. Please see 6 NYCRR 624.4 and 624.5 for further information on party status and identification of issues.

If seeking full party status, the petitioner must propose issues that could result in permit denial, major modification of the proposed project, or the imposition of significant permit conditions. The petition must identify all statutory and regulatory requirements the project may not meet, and explain why. If a petitioner intends to rely upon expert testimony, the petition must also include an offer of proof that specifies the witness(es), the nature of the arguments and other documentary evidence that the petitioner intends to present at the hearing, and the basis for the assertions as to the existence of proposed adjudicable issues.

All filings requesting party or amicus status must be received on or before the close of business on November 21, 2006 at the Office of Hearings and Mediation Services, New York State Department of Environmental Conservation, 625 Broadway, First Floor, Albany NY 12233-1550, attn: P. Nicholas Garlick, Administrative Law Judge. Electronic filings or telefaxed submissions will NOT be accepted. Copies of the filing are to be sent at the same time and in the same manner to: Craig L. Elgut, Esq., Assistant Regional Attorney, at the Department's Region 1 Office, Building 40, SUNY Stony Brook, New York 11790-2356; and applicant's agent, William D. Wexler, Esq. 816 Deer Park Avenue, North Babylon, NY 11703.

Document Availability: All filed documents, the application and other papers are available for inspection during normal business hours at the Department's Region 1 Office, Building 40, SUNY Stony Brook, New York 11790-2356, attn: Roger Evans, Deputy Regional Permit Administrator, telephone 631-444-0365, and at the Office of Hearings and Mediation Services, P. Nicholas Garlick, Administrative Law Judge, telephone 518-402-9003.

A copy of 6 NYCRR part 624 may be obtained from the Office of Hearings and Mediation Services, or from the Department's website at

Statutory and Regulatory Provisions: The applications are processed and this proceeding is conducted according to the Environmental Conservation Law ("ECL") article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review, "SEQR"); article 24 (Freshwater Wetlands); article 25 (Tidal Wetlands); and also title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); part 661 (Tidal Wetlands); and part 663 (Freshwater Wetlands).

James T. McClymonds
Chief Administrative Law Judge

October 23, 2006
Albany, NY

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