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Berardino, Joseph - Decision, April 19, 1999

Decision, April 19, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

of the

Application for a tidal wetlands and use and protection of water permits
pursuant to the Environmental Conservation Law (ECL) Articles 15 and 25 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Parts 608 and 661

- by -

JOSEPH BERARDINO

Application No.1-4738-00605/00004

DECISION

April 19, 1999

DECISION OF THE COMMISSIONER

This Decision relates to comments filed pursuant to 6 NYCRR §624.13(b)(2) on Administrative Law Judge (ALJ) Francis Serbent's February 22, 1999 Recommended Decision in the Matter of Joseph Berardino (the Applicant) for a tidal wetland permit and use and protection of waters permit. The proposed project is to sink large boulders in a regulated tidal wetland littoral zone by hydraulic dredging or hydraulic jetting to give the Applicant a boulder-free swimming area. Comments on the Recommended Decision were to be filed by March 19, 1999, whereupon the record was closed. Comments were received from Department Staff on March 19, 1999. Applicant filed its comments late on March 31, 1999, and after consideration, does not change the outcome of this decision. The ALJ's Recommended Decision, to the extent it deviates from below, is reversed and the requested permits are denied.

Regulated Activities

ECL §25-0102 declares it to be the public policy of this state to preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social development of the state. ECL §25-0402 provides that any person proposing to conduct a regulated activity shall have the burden of demonstrating that the activity will be in accord with the policy and provisions of the act. ECL §15-0505 provides that no person shall excavate below the mean high water level in any navigable waters without a permit.

The context for evaluating the proposed project is within the pertinent provisions of the statutes and the companion regulations at 6 NYCRR Part 608 and 6 NYCRR Part 661. The companion regulations are to be read in harmony with the statute to provide an adequate basis to evaluate proposed tidal wetland projects.

6 NYCRR Part 661 contains the tidal wetlands land use regulations. Section 661.4(k) contains the definition of dredging as "excavation or removal of sediment, soil, mud, sand, shells, gravel, or other aggregate from any tidal wetland or adjacent area for the direct or indirect purpose of establishing or increasing water depth, increasing the surface or cross sectional of a waterway, or obtain such sediment, soil, mud, gravel shells or aggregate." Section 661.4(ee)(1)(i) provides that any form of draining, dredging, excavation or removal, either directly or indirectly of soil, mud, sand, shells, gravel or other aggregate is a regulated activity. 6 NYCRR §608.5 specifies that a permit is required to excavate from, either directly or indirectly, navigable waters of the State.

The Applicant proposes to bury some twenty 200 to 500 pound boulders within a tidal wetland littoral zone seaward of the Applicant's property on the north shore of Long Island. The affected area is roughly 2,200 square feet.

The ALJ reasoned that the burial of twenty 200 to 500 pound boulders in the littoral zone "...would not lower the beach under water [and] would not alter any waterway...." thus the project would not be in contravention of the standards. The ALJ concluded that the "...activity is not in fact or by definition under the ECL "dredging" or "excavation" and is not a regulated activity." Therefore, the ALJ concluded, no permit is required to undertake the project.

Additionally, the ALJ reported in Finding of Fact 21 about "routine beach regrading and cleaning, both above and below the mean high water mark." The ALJ found that jetting as proposed finds its closest regulatory equivalent in beach regrading and cleaning, since in his view the word 'jetting' does not appear in the regulations and thus is not by definition dredging or excavating. Usually under the tidal wetlands regulatory program, the activity of beach regrading does not require a permit. (See, §661.5(b)(23)). Beach regrading is commonly performed on public beaches to maintain a safe beach environment.

I reject the ALJ's findings and conclusions regarding jetting. Instead, upon the record as a whole, I find that hydraulic dredging or hydraulic jetting is in fact dredging or excavation. Jetting removes soil and sand, either indirectly or directly from beneath an object in the littoral zone. The pressure from the jetting hose displaces soil hydraulically and other materials such as shells found in an intertidal area, removing them from their natural setting. I agree with Staff that this proposed activity constitutes dredging, excavation and removal within the meaning of 6 NYCRR §661.4(ee). I further find that such jetting is "excavation" within the context of 6 NYCRR §608.5. Using jetting to create a cavity or hole in the seabed is excavating material to create the cavity. The Applicant's defining his project as "routine beach regrading" so as to avoid being considered a regulated activity and the ALJ's concurrence based upon a narrow view of the facts ignores the intent of the statutes and the companion regulations. This is a regulated activity requiring a Departmental permit.

The ALJ's analysis and findings construing §661.5(b)(23), ("routine beach regrading and cleaning") is unfounded. There is no connection between the generally unregulated activity of routine beach regrading and cleaning, which involves removing debris from the beach, and the regulated activity of hydraulically jetting boulders and sinking them in the littoral zone. The ALJ erred in considering them as similarly consistent activities. The proposed activities are inconsistent with the clear intent of the applicable law and regulations. Further, as Staff has stated, routine beach regrading does require a permit when such activity may disturb important resources. Accordingly, the project cannot be considered analogous to routine beach regrading and cleaning that does not require a permit.

Environmental Impacts

Given their location at the land-water interface, littoral zones play an important role in flood, hurricane and storm control. The Applicant asserts that sinking the boulders would not affect to any measurable degree marine food production, or wildlife habitat and noted a lack of suitable habitat. It is the Applicant's opinion that the site is not a productive littoral zone and therefore hydraulic dredging or jetting would result in little or no environmental damage. However, even in relatively unproductive areas, littoral zones have the potential to become more biologically productive in the future. (See, generally 6 NYCRR §661.2(e)).

The record is replete with information regarding the environmental benefits attributable to the site. Based upon its review of observations made on four site visits and reviews of site reports, Staff concluded that the littoral zone was productive, that the project would cause impacts to the ecosystem, wildlife habitat, aesthetics and recreation, and that intertidal zones such as this one provides habitat complexity and attracts fish, lobster and birds. (Transcript pgs., 102, 104, 107, 109, 110, 111,) Additionally, Staff found that the boulders in the project area help reduce wave energies by breaking up the crest of waves and removing such boulders may accelerate beach/bluff erosion and result in additional armoring of the bluffs that are prone to collapse. (Transcript pg. 114) And, it is Staff's opinion that burial of the boulders would not be effective since they would likely resurface in a short time due to tidal actions. The evidence and testimony by Staff on these issues is overwhelmingly persuasive and I attribute far greater weight to this evidence than does the ALJ. There is more than enough relevant, probative evidence to refute the Applicant's contentions.

The ALJ's conclusion that "as proposed, any adverse impacts would at worse case be minimal and reparable and are more conceptual, or theoretical impact than a permanent, finite and/or measurable impact" is inconsistent with the preponderance of evidence comprising the record. I conclude, as above, the dredging project will adversely impact the tidal wetland littoral zone.

Swimming Access

The ALJ concludes the project is reasonable and necessary pursuant to 6 NYCRR §661.9(b)(iii) because "...swimming requires water access and is water dependent" and further, that "...the denial of the application to save a discrete sample of marine life on an essentially barren rock and thus requiring safe water access at a beach two to four miles away cannot be concluded to be reasonable and necessary [when taking into account] ...the absence of undue adverse environmental impacts...."

Having found the project would in fact impact the environmental amenities of the littoral zone is sufficient for project denial. The sole remaining question is whether swimming access presents such an overwhelming need as to offset those environmental benefits.

The location of the project site is on the rocky, boulder-strewn coastline of the north shore of Long Island. The character of the coastline is part of the natural geomorphology of the north shore. The Applicant has acquired a home there knowing of the existing physical terrain. Swimming access, as proposed by the Applicant would eliminate some of the natural coastline seaward of the Applicant's property. Yet, within a short walking or driving distance are places where swimming access to water is readily available. For example, one safe access point to water is a short walk away; another access point within four or five minutes walk; and another access point is within a two or three minute drive. Moreover, the Applicant (and public) has access to water from the foreshore. Such water access by Applicant can occur anywhere on the beach near its property. This is discussed in the testimony and hearing exhibits. (See, Transcript pgs., 119, 151. Exhibit 11, the Public Trust Doctrine, Official Notice herein taken). Accordingly, it is reasonable to conclude that alternatives to the project are readily available. Thus the project is not reasonable and necessary.

All other facts and conclusions in the Recommended Decision that are not consistent with this Decision are rejected.

For the New York State Department
of Environmental Conservation

_______________/s/_______________
By: John P. Cahill, Commissioner

Dated: Albany, New York
April 19, 1999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road, Albany NY 12233-1550

In the Matter

of the

Application for a tidal wetlands permit

(Application Number 1-4738-00605/00004)

pursuant to the Environmental Conservation Law Article 25

by

JOSEPH BERARDINO

HEARING REPORT

by

/s/
Francis W. Serbent

Administrative Law Judge

February 22, 1999

PROCEEDINGS

Joseph Berardino, c/o JCM Capital Corp. 25 Melville Park Road (formerly at 555 Broadhollow Road) Melville NY 11747 (the "Applicant") initially applied on October 17, 1997 to the New York State Department of Environmental Conservation (the "Department") for a tidal wetlands permit [application #1-4738-00605/00004]. The Applicant proposes to sink approximately twenty small rocks currently exposed at the shore of his lot on Long Island Sound located at 62825 North Road, County Road 48, Town of Southold, Suffolk County (SCTM#1000-40-1-11.1).

The Department processed the application and these proceedings were conducted pursuant to the Environmental Conservation Law ("ECL") Article 1 (General Provisions), Article 3 (General Functions), Article 8 (Environmental Quality Review), Article 15 Title 5 (Protection of Water), Article 25 (Tidal Wetlands), Article 70 (Uniform Procedures) and also Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 608 (Use and Protection of Waters), Part 617 (State Environmental Quality Review, "SEQR"), Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures) and Part 661 et seq. (Tidal Wetlands-Land Use Regulations).

The Department's Region 1 Staff ("Staff") issued a Notice of Complete Application on March 30, 1998 that included a negative declaration made pursuant to the SEQR criteria. Staff determined the proposal will not result in any significant adverse environmental impacts. The Notice of Complete Application identified an application for a tidal wetlands permit, a protection of the waters permit for excavation and fill in navigable waters pursuant to 6 NYCRR §608.5 and a State water quality certification pursuant to 6 NYCRR §608.9. Staff advised the Applicant by letter dated June 2, 1998 that it denied the application and according to 6 NYCRR §621.9(a) explained that

the proposal would not meet certain standards for a tidal wetlands permit. The Applicant, pursuant to 6 NYCRR 621.7(f), then requested a hearing, among other things, in a letter dated July 1, 1998. Staff filed a Hearings Request form dated July 31, 1998 in the Office of Hearings and Mediation Services and the case was assigned on August 6, 1998 to Administrative Law Judge ("ALJ") Francis W. Serbent. The Applicant's office was contacted on that date to arrange for a hearing and for the preparation of a hearing notice by the ALJ.

A public hearing on the denial was originally scheduled for October 14, 1998, and a notice published. The public hearing was then rescheduled at the Applicant's request, for November 17, 1998. The notice for the rescheduled public hearing ("notice") was published in Suffolk County by NEWSDAY on October 12, 1998 with proof of publication filed and in the Department's Environmental Notice Bulletin on October 14, 1998. The notice was mailed to the County Clerk, the Southold Town Supervisor, the Southold Town Clerk and others known or deemed to have an interest.

The Department held a legislative hearing on November 17, 1998 at 10:00 AM in the Town Board chambers, rather than the conference room as noticed, in the Southold Town Hall, 53095 Main Road, Southold NY before ALJ Serbent. No one filed a statement or responded to the call for statements. A prehearing issues conference was called to order immediately following the legislative hearing at the same location and again there were no filings of proposed issues, no filings seeking party status and no responses to the calls for prospective parties or proposed issues. After adjourning the prehearing conference, an adjudicatory hearing was held and completed also on that day at the same location.

The ALJ received the transcript on December 16, 1998, received the Applicant's written closing statement on December 31, 1998 and then closed the record. The record includes the application, 225 pages of hearing transcript, 13 exhibits in evidence plus exhibit #11, not in evidence but as a statement by Staff in a document titled "The Public Trust Doctrine in New York" and the Applicant's post hearing submittal.

Parties

The Applicant and the Department Staff are parties by regulation. There were no filings for party status or filings proposing issues for adjudication.

The Applicant was represented by Suffolk Environmental Consulting, Inc., (Bruce A. Anderson, President), Newman Village, Main Street, PO Box 2003, Bridgehampton, NY 11932-2003. Mr. Anderson testified and examined the Staff's testimony and evidence.

The Department Staff was represented by Frank Bifera, Esq., General Counsel 50 Wolf Road, Albany (Craig Elgut, Esq., Region 1 Tidal Wetlands Attorney, of counsel). Matthew Sclafani, Marine Resource Specialist appeared for Staff.

Issues

The Staff denied the application because it determined the proposal to be essentially the dredging of approximately 2200 square feet of beach in a tidal wetland littoral zone with a fill of approximately twenty rocks. The Staff determined this dredging does not meet the standards for permit issuance pursuant to 6 NYCRR §661.9(b)(i), (iii) and (v). The ALJ ruled that reasons for the Staff's denial of the application as described in the June 2, 1998 denial letter were the issues for adjudication. There were no appeals.

Issue #1: The Staff determined the proposal would have an undue adverse impact to the present and potential values of the tidal wetland contrary to 6 NYCRR §661.9(b)(i). Staff described the area as a rocky intertidal habitat that provides marine food production, wildlife habitat, cleansing of the ecosystem, storm and flood control, spawning, nursery and shelter for marine organisms. 6 NYCRR §661.9(b)(i) requires a proposal to be "... compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area ..."

Issue #2: The Staff determined that the proposal is contrary to 6 NYCRR §661.9(b)(iii) because it is not reasonable or necessary to swim here since there are other locations along the beach for swimming. 6 NYCRR §661.9(b)(iii) requires a proposal to be "... reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent:"

Issue #3: Staff interpreted the proposal to sink rocks as actually a dredging and filling operation in a tidal wetland and dredging is a presumptively incompatible use requiring a permit. 6 NYCRR §661.9(b)(v) requires a dredging proposal to comply:

"... with the use guidelines contained in section 661.5 of this part. If a proposed regulated activity is a presumptively incompatible use under such section, there shall be a presumption that the proposed regulated activity may not be undertaken in the subject area because it is not compatible with the area involved or with the preservation, protection or enhancement of the present or potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed activity will be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands ...".

Applicant's position

The Applicant would sink in place approximately twenty relatively small rocks ranging from 200 pounds to 500 pounds by hydraulic jet in the beach area under low water and/or wetted by tides. The Applicant contends there would be no changes to the wetland values. Further, the Applicant categorizes the proposal, among other things, as essentially akin to routine beach regrading, a tidal wetland use designated as use #23 in 6 NYCRR §661.5(b)(23) that does not require a permit. The Applicant claims the proposal would alleviate dangerous conditions along his shore for swimmers entering and leaving the water. The Applicant does not propose to dredge or remove any material from the site.

Findings of Fact

General

  1. The Applicant is the owner of shore front land on Long Island Sound located at 62825 North Road, County Road 48, Town of Southold, Suffolk County.
  2. The area waters off shore and the tidal area on the beach at the shore is designated as a littoral zone on the State tidal wetlands inventory map #718-552l index map number 4.
  3. The littoral zone at the site is a sandy beach with gravel, pebbles and rocks of various sizes partially exposed above the sand.

    Issue #1

  4. Birds, vertebrates and fish can be seen in the littoral zone.
  5. There are no signs of submerged or other aquatic vegetation present in the littoral zone beach even during the warmer months when any productivity in the intertidal zone is expected to be greatest.
  6. The littoral zone beach does not contain sediments that are associated with shellfish, clams, quahogs, soft clams and other crustaceans.
  7. The littoral zone beach has sand too coarse and rocky with currents too strong for shellfish to set or propagate or grow.
  8. The Applicant predicts that there is no potential for the spawning, shelter cover or nesting on the rocks to be sunk and the proposal to sink rocks would not effect to any degree measurable marine food production or wildlife habitat.
  9. Staff observed marine organisms on several rocks in the vicinity of the littoral zone beach but Staff did not intend to identify rocks proposed to be sunk. The Applicant's inspection of the individual rocks proposed to be sunk showed no signs that anything was growing on them as no barnacles, attached aquatic vegetation or any encrustation on or around the rocks were found.
  10. One example of a rock identified by Staff to be sunk has a small patch of barnacles showing on the underside of an otherwise barnacle free rock. Any organisms adhering to the sinking rocks would be expected to be adversely impacted.
  11. Absent visible biological growths or vegetation on the rocks proposed to be sunk and absent otherwise in the littoral zone, the mechanisms for cleansing the ecosystem are not present.
  12. Vegetation or any biological growth that would be employed to clean the ecosystem would also provide some storm and flood control but it is absent on the rocks proposed to be sunk and in the littoral zone.
  13. In general, even though rocks may be bare, if left in place and exposed long enough, the rocks would eventually provide a habitat and the rock surfaces can be expected to support biological growths.
  14. The littoral zone rocks are subject to movement over time by severe storms and can be expected to be alternately buried or exposed naturally.
  15. It is not known how long any of the rocks proposed to be sunk have been in place since last moved.
  16. It is predicted that the proposal to sink rocks would not produce any measurable changes to the wetland in a ten or twenty year period.

    Issue #2

  17. Alternative water access for swimmers is at the Town's Truman Beach, approximately two miles east of the Applicant's beach and Smith's Beach, three or four miles west.

    Issue #3

  18. The Staff inspected the site and predicts, among other things, that dredging 2200 square feet of beach would result in turbidity, that dredging would cause the loss of the shelter of rocky intertidal and subtidal habitat and that dredging would result in the loss of littoral zone functions and as a future habitat for fish and lobsters.
  19. The Applicant disputes Staff's categorization of this activity as "dredging" and claims its proposal is not for dredging as defined at 6 NYCRR §661.4(k):

    "Dredging" shall mean the excavation or removal of sediment, soil, mud, sand, shells, gravel or other aggregate from any tidal wetland for the direct or indirect purpose of establishing or increasing water depth, increasing the cross-sectional area of a waterway, or obtaining such sediment, soil, mud, sand, shells, or other aggregate. ..."
  20. The Applicant proposes to sink a select number of smaller rocks, weighing 200 to 500 pounds each, that hinder safe access to and in the water. Approximately twenty rocks in the littoral zone beach would be sunk in place by directing a jet of water about them with the intent to cause the rocks to sink in place below the surface of the beach.
  21. The Applicant consulted the tidal wetlands use guidelines at 6 NYCRR §661.5 and found no category listing or reference to the sinking of rocks as proposed. The proposed activity is not listed among the fifty-seven uses, however, use #23, "Routine beach regrading and cleaning, both above and below mean high water mark." is allied with like results. In the littoral zone, Use #23 does not require a permit.
  22. The Applicant proposes no activity that would impact the surface water levels or depths at the beach.

CONCLUSIONS

Conclusion #1: The proposal to sation that states, in pertinent part: "...that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area ..." The facts noted above do not lead to a reasonable conclusion tink approximately twenty rocks in the littoral zone beach would not have an undue adverse impact to the present and potential values of the tidal wetland contrary to 6 NYCRR §661.9(b)(i).

Discussion: As noted at 6 NYCRR §661.2(e), Findings, there is in nature an extreme variability in the tidal wetland values of littoral zones. Here at the Applicant's beach we find little, if any, tidal wetland values. There is little, if any, habitat, contributions to flood control, cleansing, or marine food production due to the lack of vegetation, sands too coarse and currents too swift for shellfish to breed or grow, a beach with no potential for spawning or nesting and no sediments for shellfish, clams and other crustaceans. A consideration here centers on that portion of the regulhat there would be any discernible adverse impacts let alone undue adverse impacts on the present or potential value of this littoral zone.

It is understood that storms can move beach rocks and are, or can be, covered at one point in time and exposed to the elements at another time. The intervals are for indeterminate periods of time. The rocks proposed to be sunk can also be exposed by storms. In this context, the proposed sinking of certain rocks can be viewed as mimicking natural actions that are expected in a littoral zone, actions that neither impairs nor alters the natural condition of this littoral zone. In the context of present and future wetland values and in this case, a sample of marine life found on the surface of an essentially barren rock would be lost by being sunk but the habitat surface would again be available upon exposure. As proposed, any adverse impacts would at worse case be minimal and reparable and are more of a conceptual, or theoretical impact than a permanent, finite and/or measurable impact. Therefore, I must conclude that this proposal to sink rocks in place would not have any measurable or undue adverse impact to the present and potential values of this tidal wetland.

Conclusion #2: The proposal is reasonable and necessary pursuant to 6 NYCRR §661.9(b)(iii).

Discussion: 6 NYCRR §661.9(b)(iii) requires a proposal to be "... reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent: ..." Certainly swimming requires water access and is water dependent. The Applicant's stated purpose for sinking these rocks, for safer access for swimmers and swimming, speaks to "... the degree to which the activity requires water access or is water dependent ..." Furthermore, the denial of the application to save a discrete sample of marine life on an essentially barren rock and thus requiring safe water access at a public beach two to four miles away can not be concluded to be reasonable and necessary. Consequently, I must conclude that the proposal is reasonable and necessary, taking into account the absence of undue adverse environmental impacts, the distance to alternatives and the degree to which swimming requires water access and is water dependent.

Conclusion #3: The proposed activity is not in fact or by definition under the ECL either "dredging" or "excavation" and is not a regulated activity. The Applicant has also shown that the proposal would be compatible with the area involved and with the preservation, protection, and enhancement of the present and potential values of tidal wetlands.

Discussion: Staff seems to consider the proposal to mean the removal of all the material under the entire 2200 square feet of beach littoral zone by dredging down far enough to place the approximately 20 rocks in the diggings and then filling in over these rocks. At the hearing, Staff equate jetting with dredging. However the Applicant's proposal is not for the direct or indirect purpose of dredging by any method as defined in pertinent part by 6 NYCRR §661.4(b)(k) Dredging:

"... for the direct or indirect purpose of establishing or increasing water depth, increasing the cross-sectional area of a waterway, or obtaining such sediment, soil, mud, sand, shells, or other aggregate. ..." (Emphasis added)

The proposed activity would not lower the beach under the water to increase water depth, it would not alter any waterway and the Applicant would not obtain any material.

Further, the proposed activity is not regulated or an action requiring a permit pursuant to 6 NYCRR §608.5. 6 NYCRR §608.5 states:

"Permit required. No person, local public corporation or interstate authority may excavate from or place fill, either directly or indirectly, in any of the navigable waters of the State or in marshes, estuaries, tidal marshes and wetlands ...". .(emphasis added)

The proposed activity would not excavate from this littoral zone nor is there a proposal to place fill in this tidal wetland.

The sinking of rocks as proposed or the "Routine beach regrading and cleaning, both above and below mean high water mark." as described as use #23 in the Use Guidelines are actions that would not and do not impair or alter the natural condition of this littoral zone and would not alter or impair its present and future wetland values. Hence I can not conclude that a permit is required by either 6 NYCRR §661.9 or 6 NYCRR §608.5.

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