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LaRuffa, August - Rescheduled

April 29, 2009

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING

Applicant: August J. LaRuffa, Jr.
257 Windward Drive
Port Jefferson, NY 11777

Project Application Number: 1-4724-01628/00001

Project Location and Description: Applicant proposes to construct a single family dwelling, garage, septic system and driveway at his property located at 20 Gloucester Avenue, Montauk, Town of East Hampton, Suffolk County, New York, county tax map designation SCTM No. 0300-19-04-14.1. The site contains a Class I freshwater wetland identified on the official wetland maps as #MP-25. The proposed construction would be entirely within this freshwater wetland.

Permits Requested: Applicant has applied to the New York State Department of Environmental Conservation ("Department") for a permit authorizing the proposed project pursuant to article 24 of the New York State Environmental Conservation Law ("ECL") (Freshwater Wetlands), and part 663 (Freshwater Wetlands Permit Requirements). This project also requires a permit issued by the Town of East Hampton.

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

Notice of Complete Application: A notice of complete application, pursuant to 6 NYCRR part 621, was published in the Department's Environmental Notice Bulletin on July 9, 2008, and in Newsday on July 14, 2008.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated August 14, 2008. Department staff determined that the application failed to satisfy the standards for permit issuance contained in 6 NYCRR 663.5.

Specifically, Department staff asserts that the disturbance and occupation of the proposed structures within the wetland will result in permanent loss and destruction to this portion of the wetland. Many of the functions and benefits provided by the entire Class I wetland existing at this site will be lost or greatly reduced as a result of the elimination of this portion of the wetland. In addition, 6 NYCRR 663.4 states that "constructing buildings, accessory roads, and parking areas can have several effects on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction." By allowing the proposed project the Department would be setting a precedent for future encroachment and cumulative impacts. Therefore, the project will result in significant undue adverse impacts to this wetland and its adjacent area and is not compatible with the preservation, protection and conservation of the wetland and its benefits.

Furthermore, 6 NYCRR 663.4(d)(38) lists the introduction of sewage effluent in a freshwater wetland as "(X)", meaning this activity is incompatible with a freshwater wetland and its functions or benefits. The regulations state that sanitary systems in or near wetlands "may contaminate ground and surface waters with undesirable chemicals, nutrients and organisms." Human pathogens, particularly viruses, can enter surface waters creating a potential human health risk. Pursuant to 6 NYCRR 663.5(e)(2), any activity identified as "(X)" also must meet each of the weighing standards listed in that section.

In addition, 6 NYCRR 663.4(d) lists the construction of a single family dwelling, garage and driveway in a freshwater wetland as "(X)", meaning this activity is incompatible with a freshwater wetland and its functions or benefits. Pursuant to 6 NYCRR 663.5(e)(2), any activity identified as "(X)" also must meet each of the weighing standards listed in that section.

Finally, 6 NYCRR 663.5 states "Class I wetlands provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefits(s) of the Class I wetland." Applicant has failed to demonstrate that the proposed activities satisfy a compelling economic or social need that clearly outweighs the detriment to the benefits of this Class I wetland and its adjacent area.

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 Wednesday, May 27, 2009, at 10:00 a.m., at the Amaganset Public Library, 215 Main Street, Amaganset, New York 11930.

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 Wednesday, May 27, 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 27, 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 Wednesday, May 20, 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 August J. LaRuffa, Jr., 257 Windward Drive, Port Jefferson, New York 11777.

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 Wednesday, May 27, 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: Marilyn Peterson, Environmental Analyst, telephone 631-444-0366, 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 www.dec.ny.gov/regs/4483.html.

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 24 (Freshwater Wetlands); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 663(Freshwater Wetlands Permit Requirements).

James T. McClymonds
Chief Administrative Law Judge

April 29, 2009
Albany, New York

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