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Arcate, Robert - Hearing Cancelled

April 15, 2009


Applicant: Robert Arcate
9 Canoe Place Road
Hampton Bays, NY 11946

Project Application Number: 1-4736-07040/00001

Project Location and Description: Applicant is the owner of a commercial restaurant located at 43 Canoe Place Road, Hampton Bays, Town of Southampton, Suffolk County, New York. The tax map designation of the premises is SCTM No. 900-266-04-09. Applicant proposes to dredge a 70' x 165' area surrounding an existing dock to 4' below mean low water, to dewater the dredged material on-site and then truck the material off-site. Finger piers and pilings are proposed to be installed along the existing dock. The purpose of the project is to increase access and dockage for restaurant customers arriving by boat.

Permits Requested: Applicant has applied to the New York State Department of Environmental Conservation ("Department") for a Tidal Wetlands permit authorizing the project pursuant to Environmental Conservation Law ("ECL") article 25 (Tidal Wetlands) and part 661 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") (Tidal Wetlands - Land use Regulations). Applicant has also applied for a permit to allow the Excavation or Placement of Fill in Navigable Waters, pursuant to 6 NYCRR 608.5; and a Water Quality Certification, pursuant to 6 NYCRR 608.9 and section 401 of the Federal Water Pollution Control Act, Title 33, United States Code 1341. This project also requires a permit issued by the Town of Southampton and the U.S. Army Corps of Engineers.

SEQRA Status: Department staff determined that the project is an Unlisted action pursuant to the State Environmental Quality Review Act, ECL article 8 ("SEQRA") and 6 NYCRR part 617.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated July 15, 2008. Department staff concluded that the project fails to meet the standards for tidal wetlands permit issuance.

Specifically, Department staff determined that, pursuant to 6 NYCRR 661.9(b)(1)(i) and 608.8(c), the project will have undue adverse impacts on the present and potential values of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat and flood, hurricane and storm control. The proposed activity will destroy benthic marine habitat. Dredging will result in decreased primary and secondary food production, thus limiting the availability of food for other marine organisms, leading to a decrease in abundance and diversity of species, including various marine species of commercial and recreational importance. Moreover, dredging to the existing bulkhead will result in increased wave energy in the vicinity of the project site. This will cause scouring along the bulkhead and lead to diminished storm control during heavy storm events.

In addition, pursuant to 6 NYCRR 661.9(b)(1)(ii) and 608.8(b), Department staff determined that the proposed project is not compatible with the public health and welfare. Degradation of the habitat through dredging would directly affect area fisheries and fishery stocks. Dredging would result in undue adverse impacts to habitats for spawning, foraging, juvenile nurseries and bait fish production. Dredging would result in undue adverse impacts to vegetation such as Ulva sp., directly affecting commercially and recreationally important fish stocks which rely on that vegetation, such as Blackfish (Tautoga onitis) and Winter Flounder (Pseudopleuronectes americanus).

Furthermore, pursuant to 6 NYCRR 661.9(b)(1)(iii) and 608.8(a), Department staff determined that the proposed project is not reasonable and necessary. The area is prone to shoaling and has been shoaled for many years. Applicant is proposing to dredge a hole in the middle of a large existing shoal that offers no easy access to deeper water. The majority of the existing shoal has depths of less than 2' at low water. A reasonable alternative would be to restrict dredging to the area around the terminal "T" end of the existing dock, which would allow ample docking for transient vessels.

Pursuant to 6 NYCRR 661.9(b)(1)(v), Department staff also determined that the proposed project does not comply with the use guidelines contained in 6 NYCRR 661.5. Dredging to a depth of 4' below mean low water would adversely impact this shallow water area and is not consistent with maintaining the characteristics of the area.

Finally, Department staff asserts that applicant installed certain pilings at its premises without first obtaining a permit from the Department. Citing 6 NYCRR 621.10(f) and 621.13(a)(5), Department staff states this permit application should be denied due to applicant's prior regulatory non-compliance.

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 Tuesday, May 12, 2009, at 10:00 a.m., at the offices of En-Consultants, Inc., 1319 North Sea Road, Southampton, New York 11968.

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.

Written comments may also be submitted at the legislative hearing or may be mailed to be received on or before Tuesday, May 12, 2009, at the Office of Hearings and Mediation Services at the address listed below. As also indicated below, if the hearing is cancelled because no petitions for party status are filed, or if any filed objections are withdrawn and all proposed issues are satisfactorily resolved before the issues conference, written comments will still be accepted until May 12, 2009.

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.

Adjudicatory Hearing: The adjudicatory hearing is scheduled to take place at the same location, immediately following the issues conference.

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 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 provide an offer of proof explaining 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 Tuesday, May 5, 2009 at the Office of Hearings and Mediation Services, New York State Department of Environmental Conservation, 625 Broadway, First Floor, Albany, New York 12233-1550, attn: Chief Administrative Law Judge James T. McClymonds. 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., Associate Regional Attorney, at the Department's Region 1 Office, Office of General Counsel, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-3409; and to Roy L. Haje, En-Consultants, Inc., 1319 North Sea Road, Southampton, New York 11968.

If no petitions for party status are filed by the above deadline, or if any filed objections are withdrawn and all proposed issues are satisfactorily resolved before the issues conference, the hearing, including the legislative portion thereof, will be canceled. However, written comments may still be submitted to the Department until Tuesday, May 12, 2009.

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, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-2356, attn: Sherri Aicher, Environmental Analyst, telephone 631-444-0403, and at the Office of Hearings and Mediation Services, 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: This application is processed and this proceeding is conducted according to ECL article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review, "SEQR"); article 25 (Tidal Wetlands); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); part 661 (Tidal Wetlands - Land Use Regulations); and part 608 (Use and Protection of Waters).

James T. McClymonds
Chief Administrative Law Judge

April 15, 2009
Albany, New York

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