Department of Environmental Conservation

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West Hampton Dunes, Village of

December 1, 2010


Applicant: Village of West Hampton Dunes
P.O. Box 728
Westhampton Beach, New York 11978

Applicant's Representative:

Joseph W. Prokop, PLLC
Attorney at Law
Village Attorney
Village of West Hampton Dunes
267 Carleton Avenue, Suite 301
Central Islip, New York 11722

Aram V. Terchunian, Commissioner of Wildlife Protection
c/o Village of West Hampton Dunes

Application Number: 1-4736-01887/00006

Project Location and Description: Applicant Village of West Hampton Dunes sought to renew a general permit (the "1999 Permit") issued on August 6, 1999, 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 Requirements). The 1999 Permit authorized the reconstruction, repair and construction of single family dwellings and accessory structures that were pre-existing, or would have otherwise been in compliance with the development restrictions contained in 6 NYCRR part 661, in an area from Gunning Point to Cupsogue Beach County Park, Village of West Hampton Dunes, Town of Southampton, Suffolk County, New York. That area was severely affected by storm damage.

Applicant intervened in Rapf v. Suffolk Cty., 84 Civ. 1478 (EHN), an action commenced in 1984 in the United States District Court for the Eastern District of New York. The Department was named as third-party defendant in that lawsuit. On October 31, 1994, the parties entered into a Stipulation of Settlement and Consent Judgment (the "Consent Judgment") resolving the matter. Pursuant to the terms of the Consent Judgment, the Department issued the 1999 Permit to applicant.

On July 16, 2009, applicant requested reissuance of the 1999 Permit. By letter dated December 23, 2009, the Department's Division of Environmental Permits in Region 1 advised applicant that the 1999 Permit had expired effective August 31, 2009.

The Division of Environmental Permits then reviewed the application and re-issued the permit on February 5, 2010 (the "2010 Permit"). By letter dated March 1, 2010, applicant advised the Department that applicant objected to the content, terms, and conditions of the 2010 Permit, and requested a hearing.

Permits Requested: Renewal of a tidal wetlands general permit originally issued on August 6, 1999.

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, specifically, 6 NYCRR 617.5(c)(9) (single family dwellings) and 6 NYCRR 617.5(26) (renewals).

Department Staff Position: Department staff takes the position that the differences in conditions and language between the 2010 Permit and the 1999 Permit were either minor and inconsequential to the intent of the 1999 Permit, a clarification of the original intent, or in some instances were less restrictive due to changes in the environmental conditions at the site. Specifically, single family dwellings have now been constructed in many areas that may have once been endangered species habitat.

Legislative Hearing: All persons, organizations, corporations, or government agencies that may be affected are invited to comment on the application. For this purpose, a legislative hearing to receive unsworn comments will be held on Tuesday, January 5, 2011, at 10:00 a.m., at 914 Dune Road, West Hampton Dunes, 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 hearing-impaired 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, December 28, 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 December 28, 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 the terms and conditions of the 2010 Permit. 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 renewal, whether the request is for full party or amicus status, and the precise grounds for opposition or support. Mere opposition 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 renewal, or the imposition of significant permit conditions. The petition must identify all statutory and regulatory requirements the application 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, December 28, 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: Vernon G. Rail, Esq., Assistant 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 Joseph Prokop, Esq., 267 Carleton Avenue, Suite 301, Central Islip, New York 11722.

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, December 28, 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: Roger Evans, Regional Permit Administrator, telephone 631-444-0359, 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); and part 661 (Tidal Wetlands - Land Use Requirements).

James T. McClymonds
Chief Administrative Law Judge

December 1, 2010
Albany, New York

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