April 7, 2010
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES
CONFERENCE, AND ADJUDICATORY HEARING
Applicant: Robert DeNyse
68 Crescent Court
Wading River, NY 11792
Project Application Numbers: 1-4730-01275/00001
Project Location and Description: Applicant is the owner of a certain property located at 68 Crescent Court, Wading River, Town of Riverhead, Suffolk County, New York. The tax map designation of the property is SCTM No. 600-26-03-74.4. The topography of north side of the property consists of a bluff which traverses the property from east to west a distance of approximately 151' and borders on the Long Island Sound. Applicant proposes to construct a 12'x12'x151' stone revetment at the toe of the bluff, landward of the high water mark of the Sound, to abate erosion.
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).
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.
Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit by letter dated October 14, 2005. Department staff determined that the application failed to satisfy the standards for tidal wetlands permit issuance contained in 6 NYCRR 661.9. A copy of the letter of denial is available for public inspection at the locations indicated below.
In particular, Department staff determined that the project did not meet the standard set forth in 6 NYCRR 661.9(c)(1). Specifically, the proposal is not compatible with the public health and welfare as it will adversely impact public access, public resources and the public's interest in protecting and maintaining important wildlife, fishery and shellfishery stocks. Moreover, the project is contrary to the public's interest by failing to comply with New York State Coastal Policy 17 and Long Island Sound Policy 4. New York State Coastal Policy 17 states that non-structural measures are to be used whenever possible to minimize damage to natural resources and property from flooding erosion. Department staff has determined that non-structural measures such as plantings or reshaping the bluff would offer sufficient erosion protection. Long Island Sound Policy 4 states that increased erosion, aesthetic impairments, loss of public recreational resources, loss of habitats, and water quality degradation can result from erosion protection structures. Department staff has determined that all of these impacts would occur if the project were permitted. Finally, Department staff determined that the proposed project would have an undue impact on the present and potential values of the affected tidal wetland area, as enumerated in 6 NYCRR 661.9(c)(3).
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 4, 2010, at 10:00 a.m., at the Riverhead Senior Citizen Center, 60 Shade Tree Lane, Riverhead, New York 11901.
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 4, 2010, 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 4, 2010.
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 and will continue on successive days, as necessary.
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, April 27, 2010, 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 Robert DeNyse, 68 Crescent Court, Wading River, New York 11792.
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 4, 2010.
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: Mark Carrara, Deputy permit Administrator, telephone 631-444-0374, 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 25 (Tidal Wetlands); and 6 NYCRR part 617 ("SEQR");part 621 (Uniform Procedures);part 624 (Permit Hearings); and part 661 (Tidal Wetlands - Land Use Regulations).
James T. McClymonds
Chief Administrative Law Judge
April 7, 2010
Albany, New York