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Nalewajk, Robert and Susan

July 11, 2008




Applicants: Robert and Susan Nalewajk, 111 Old Field Road, Old Field, NY 11711.

Project Site: 111 Old Field Road, Old Field, NY 11733. The site is located in the Town of Brookhaven, Suffolk County on Conscience Bay.

Project: Applicants have applied for a tidal wetlands permit (application #1-4722-02681/00003). This permit is necessary to construct a 4' x 135' dock leading to a 3' x 24' ramp and 6' x 20' float secured by two piles. The proposed project would be located in a tidal wetland and adjacent area.

Staff of the Department of Environmental Conservation (DEC staff) denied the permit application by letter dated July 17, 2007. The basis for denial by DEC staff was that the proposed project: (1) will have an undue adverse impact on the present and potential values of the tidal wetland; (2) is not compatible with the public health and welfare; and (3) is not reasonable or necessary. By letter dated July 26, 2007, applicants requested an administrative hearing.

Permits: The project would require a DEC tidal wetlands permit pursuant to ECL article 25. In addition, the project will require a Village of Old Field permit and a permit from the U.S. Army Corps of Engineers. The project may also require an Use and Protection of Waters Permit from the DEC pursuant to ECL Article 15.

SEQRA Status: This action is listed as a Type II action.

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 August 12, 2008 at 10:00 a.m. in the Ward Melville Heritage Organization Educational and Cultural Center, 97P Main Street, Stony Brook, NY 11790, (631) 689-5888.

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 August 7, 2008. 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 DEC 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 a substantive and significant issue or demonstrate that it can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party. 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 August 5, 2008 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: Gail Rowan, Esq., Assistant Regional Attorney, at the Department's Region 1 Office, 50 Circle Road, Stony Brook, New York 11790-3409; and applicants' attorney, Glenn B. Gruder, Esq., Certilman Balin, 1393 Veterans Memorial Highway, Suite 301S, Hauppauge, NY 11788.

Adjudicatory Hearing: The adjudicatory hearing in this matter is scheduled to begin immediately after the issues conference on August 12, 2008, continuing throughout that day and on August 13, 2008, as necessary, at the same location.

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, 50 Circle Road, Stony Brook, New York 11790-2356, attn: Darleen Gerbino, telephone 631-444-0404, 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 (Waters); of Protection and (Use 608 part NYCRR) (6 York New State the Regulations Rules Codes, Compilation Official 6 also Wetlands); (Tidal 25 article Water); (Protection 15 SEQR); Review, Quality Environmental (State 8 Functions); (General 3 3, Provisions); ECL part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 661 (Tidal Wetlands).

James T. McClymonds
Chief Administrative Law Judge

July 11, 2008
Albany, NY

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