Rosenberg, Ted M.
January 21, 2011
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING
Applicant: Ted M. Rosenberg
147 Old Field Road
Setauket, NY 11733
Project Application Number: 1-4722-02515/00004
Project Location and Description: Applicant is the owner of property located at 147 Old Field Road, Setauket, Suffolk County, New York (SCTM# 0203-9-3-14). Applicant proposes to construct a 4' x 87' catwalk, a 3' x 20' ramp and a 6' x 20' float at the property.
Permit Requested: Applicant 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 permit (DEC Permit No. 1-4722-02515/00004). The application was deemed complete on October 2, 2007.
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 by letter dated July 30, 2009. 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). Among other things, 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 determined that shading caused by the proposed project will adversely impact marine food production. The project will also reduce access to foraging areas used by wading birds and waterfowl, particularly beneath the proposed float. Staff determined that the pilings required under the project will result in the direct loss of tidal wetlands, adversely impact benthic habitat, and alter water movement and sediment transport patterns. The shallow water habitat will also be exposed to propeller dredging, creating turbidity and destroying benthic habitat. 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 states that the bay where the project is located is listed as a significant coastal fish and wildlife habitat and the area supports a variety of shellfisheries and fisheries, including a recreational fishery for Winter Flounder, a species of special concern. 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 reasonable alternatives to the proposal exist, such as using a nearby marina or boat launch, or extending the catwalk beyond the vegetated marsh to allow access to larger vessels by dingy or kayak. 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, March 22, 2011, at 10:00 a.m., at the DEC Region 1 Office, 50 Circle Road, Stony Brook, 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, March 22, 2011. If the hearing is cancelled because no petitions for party status are filed, or if all filed objections are withdrawn and all proposed issues are resolved before the issues conference, written comments will still be accepted until Tuesday, March 22, 2011.
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 that 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, March 15, 2011, 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., Acting 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 Dan Hall, Land Use Ecological Services, Inc., 209 West Main Street, 2nd Floor, PO Box 1060, Riverhead, New York 11901.
If no petitions for party status are filed by the above deadline, or if all 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, March 22, 2011.
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, attn: Claire Werner, telephone 631-444-0365, 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
January 21, 2011
Albany, New York