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Hotten, Mark and Sherri

June 30, 2010

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

Applicants: Mark & Sherri Hotten
501 Corbin Place
West Islip, New York 11795

Project Application Number: 1-4728-02869/00008

Project Location and Description: Applicants are the owners of property located at 501 Corbin Place, West Islip, Suffolk County, New York (SCTM# 500-482-4-7). Applicants propose to construct a 4' x 75' fixed dock with a four pile boatlift and two jet ski davits along an existing bulkhead.

Permits Requested: Applicants applied to the New York State Department of Environmental Conservation ("Department") 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") for a modification of the activities authorized under their existing permit (DEC Permit No. 1-4728-02869/00008).

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 denied the permit modification by letter dated May 15, 2007. 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). Specifically, staff determined that the project did not meet the standards set forth in 6 NYCRR 661.9(b)(1)(i) because the project is not compatible with the State's policy of preserving and protecting tidal wetlands and would have undue adverse impacts on the present and potential values of the affected tidal wetlands. Staff noted that the proposed project is located in Great South Bay - West, which has been designated as a significant coastal fish and wildlife habitat. Staff states that the affected wetland area provides habitat for a tremendous diversity of fish and wildlife as well as feeding grounds for nesting and migratory birds. Staff determined that the project site is too shallow for the proposed project because, among other things, mooring a boat at the site presents an unacceptable potential for disturbing the bottom and degrading the marine habitat, both from the boat resting on or near the bottom and from dredging caused by the boat's propeller. Staff also determined that the project did not meet the standards set forth in 6 NYCRR 661.9(b)(1)(ii) because the project is not compatible with the public health and welfare. Staff notes that the bay is an important fishery resource and that most of the bay is certified for shellfishing. Staff states that this certification is water quality dependent. Staff determined that the project would have an adverse impact on water quality and, therefore, is not in the public interest. Additionally, staff determined that the project did not meet the standards set forth in 6 NYCRR 661.9(b)(1)(iii) because it is not reasonable and necessary. Staff states that boat storage is not a water dependent use and that reasonable alternatives to the proposal exist, such as, relocating the project to the adjacent canal, storing the boat on the upland portion of the site, or using a nearby boat launch or marina. 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, August 3, 2010, at 10:00 a.m., at the Town Board Room, Islip Town Hall, 655 Main Street, Islip, New York.

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, August 3, 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 Tuesday, August 3, 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 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., 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 Lawrence J. Holt, Esq., 910 Middle Country Road, Selden, New York 11784.

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, August 3, 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

June 30, 2010
Albany, New York

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