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Serth, Joseph P.

May 3, 2012


Applicant: Mr. Joseph P. Serth
8496 Mariaville Road
Pattersonville, NY 12137

Application Numbers: 4-4220-00193/00005 and 4-4220-00193/00006

Project Location and Description: Applicant applied for a freshwater wetlands permit pursuant to article 24 of the Environmental Conservation Law (ECL) and a permit pursuant to ECL article 15 (Protection of Water) to construct a new concrete retaining wall 12 feet wide and 3 feet into Mariaville Lake. The project would be located across State Route 159 from applicant's property located at 8496 Mariaville Road, Duanesburg, New York. Mariaville Lake is a navigable water (as defined in 6 NYCRR 608.1[u]) and a regulated Class II freshwater wetland (identified as RJ-3).

Permits Requested: Freshwater wetlands permit pursuant to ECL article 24 and a protection of water permit pursuant to ECL article 15.

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: Department staff has determined that the proposed retaining wall fails to meet regulatory criteria for issuance of a permit. Department staff has determined that two less intrusive alternatives exist that will stabilize the bank without filling as much as a 36 square foot portion of the lake. Department staff has concluded that applicant's proposal is not the only practicable alternative which can accomplish the bank stabilization objectives.

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 Wednesday, May 30, 2012, at 10:00 a.m., at DEC's Region 4 Headquarters, Rooms 1A and 1B, 1130 North Westcott Road, Schenectady, 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, May 29, 2012, 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.

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 basis of Department staff's denial of applicant's permit 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 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 any permit, 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 May 23, 2012, 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: Jill Phillips, Esq., Assistant Regional Attorney, at the Department's Region 4 Office, Office of General Counsel, 1130 North Westcott Road, Schenectady, New York 12306-2014; and to Joseph P. Serth, 8496 Mariaville Road, Patterson NY 12137.

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 29, 2012.

Document Availability: All filed documents, the application, and other papers are available for inspection during normal business hours at the Department's Region 4 Office, 1130 North Westcott Road, Schenectady, New York 11306-2014, attn: Jill Phillips, Assistant Regional Attorney, telephone 518-357-2373, and at the Office of Hearings and Mediation Services, telephone 518-402-9003. A copy of 6 NYCRR part 624 (link leaves DEC website) may be obtained from the Office of Hearings and Mediation Services, or from the Westlaw website.

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 15 (Water Resources); article 24 (Freshwater Wetlands); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 663 (Freshwater Wetlands).

James T. McClymonds
Chief Administrative Law Judge

May 3, 2012
Albany, New York

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