Dans, Paul E and Mary Helen Bowers
May 6, 2010
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING
Applicants: Paul E. Dans and Mary Helen Bowers
225 W. 106th Street, Apt. 9J
New York, NY 10025
Project Application Number: 1-4736-07140/00001
Project Location and Description: Applicants are the owners of property located at 22 Stokes Lane, Remsenburg, Suffolk County, New York (SCTM# 900-381-01-037). Applicants propose to remove existing rip-rap and construct 120 linear feet of bulkhead along the shoreline of a residential property. The area landward of the bulkhead is proposed to be filled with 100 cubic yards of clean fill from an upland source. Approximately 95 linear feet of the bulkhead, and all of the fill, would be located seaward of the apparent high water line in State regulated tidal wetlands associated with Moriches Bay.
Permits Requested: Applicants applied to the New York State Department of Environmental Conservation ("Department") for a Tidal Wetlands permit 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"); a Protection of Navigable Waters, Excavation or Fill, permit pursuant to ECL article 15, title 5 (Protection of Water) and 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, 33 USC § 1341.
SEQRA Status: Department staff determined that the project is not subject to further review under the State Environmental Quality Review Act, ECL article 8 ("SEQRA") and 6 NYCRR part 617 because it is a Type II action.
Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit by letter dated December 30, 2008. Department staff determined that the application failed to satisfy the standards for permit issuance contained in 6 NYCRR part 661 (Title Wetlands - Land Use Regulations) and 6 NYCRR part 608 (Use and Protection of Waters). Specifically, staff determined that the project did not meet the standard set forth in 6 NYCRR 661.9(b)(1)(i) because, among other things, the project would permanently destroy valuable vegetated tidal wetlands, thereby eliminating their ability to contribute to marine food production; prevent certain species from using the wetland area, thereby reducing the number and variety of species present; increase the potential for storm damage, scouring and wave energy reflection; reduce the potential for flood, hurricane, and storm control; decrease the system's ability to cleanse itself of excess nutrients and contaminants; and result in decreased water quality. Staff also determined that the project did not meet the standard set forth in 6 NYCRR 661.9(b)(1)(ii) because, among other things, the project would degrade an important finfish and shellfish habitat, and destroy productive tidal wetlands at the site which is incompatible with the public's interest in protecting and maintaining important fishery stocks. Staff also determined that the project did not meet the standard set forth in 6 NYCRR 661.9(b)(1)(iii) because reasonable alternatives to the project are available that would achieve applicants' objectives. Staff further determined that the project did not meet the standard set forth in 6 NYCRR 661.9(b)(1)(v) because certain of the proposed activities were presumptively incompatible with tidal wetlands pursuant to the use guidelines contained in 6 NYCRR 661.5. Lastly, with regard to protection of waters, staff determined that the project does not meet the standards set forth under 6 NYCRR 608.8 because the project endangers the health and welfare of the people of the State and would cause unreasonable damage to the natural resources of the State, as noted above. A copy of the letter of denial is available for public inspection at the locations indicated below.
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, July 20, 2010, at 10:00 a.m., at the Southampton Town Hall Building, Town Council Conference Room, 116 Hampton 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 mailed to Chief Administrative Law Judge James T. McClymonds, at the address 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 the Chief Administrative Law Judge at the address below, to be received on or before Tuesday, July 20, 2010. 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 resolved before the issues conference, written comments will still be accepted until July 20, 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 the statutory and regulatory requirements the project may not meet and provide an offer of proof specifying the witness(es), the nature of the 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, July 13, 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., 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 Paul E. Dans and Mary Helen Bowers, 225 W. 106th Street, Apt. 9J, New York, NY 10025.
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, July 20, 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); article 15, title 5 (Protection of Water); 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
May 6, 2010
Albany, New York