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Bradley Corporate Park - Order, June 18, 2001

Order, June 18, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 24 of the Environmental Conservation Law and
Part 663 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York

- by -

BRADLEY CORPORATE PARK and
JOHN MAGEE and PATRICK MAGEE,
individually and as general partners of
BRADLEY CORPORATE PARK,

Respondents

ORDER

DEC File No.3-2000-0424-43

WHEREAS:

  1. Pursuant to Part 622.13 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") an Expedited Fact Finding Hearing was concluded in this matter on March 19, 2001.
  2. The hearing report from this hearing (attached) found that the Respondents had undertaken activities within a freshwater wetland and its adjacent area without the necessary permits.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The attached hearing report prepared by Administrative Law Judges Susan J. DuBois and P. Nicholas Garlick is adopted.
  2. The Respondents are ordered to cease and desist from all construction activities within freshwater wetland NA-4 and its adjacent area.
  3. The matter is remanded back to continue the hearing regarding the issues of penalty calculation and possible remediation.
  4. All communication from the Respondent to the Department concerning this order shall be made to the Region 3 Director, NYS Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, New York 12561-1696 .
  5. The provisions, terms and conditions of this order shall bind the Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
June 18, 2001

TO: Steven Goverman, Esq.
NYS Department of Environmental
Conservation, Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

Burton I. Dorfman, Esq.
Dennis Lynch, Esq.
Dorfman, Lynch & Knoebel
51 North Broadway
Nyack, New York 10960

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged violation of Article 24 of the Environmental Conservation Law and
Part 663 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York

- by -

BRADLEY CORPORATE PARK and JOHN MAGEE and
PATRICK MAGEE, individually and as general partners of
BRADLEY CORPORATE PARK,

Respondents.

NYSDEC NO. 3-2000-04240-43

EXPEDITED FACT FINDING

HEARING REPORT

- by -

____________/s/____________
Susan J. DuBois
Administrative Law Judge

and

_____________/s/____________
P. Nicholas Garlick
Administrative Law Judge

SUMMARY

This Report addresses an expedited fact finding hearing held pursuant to Article 71, Title 27 of the Environmental Conservation Law of the State of New York ("ECL") and Part 622 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), regarding allegations by the Staff of the New York State Department of Environmental Conservation ("DEC Staff") that Bradley Corporate Park, John F. Magee and Patrick Magee ("Respondents") have undertaken construction activities without a permit in both a regulated freshwater wetland and its adjacent area.

Based upon the evidence presented at the hearing, we conclude that the Respondents did undertake construction activity in a regulated freshwater wetland and its adjacent area without a permit as alleged in the complaint.

The second part of this hearing should now be scheduled to develop a record regarding the appropriate penalty and other remedial measures to be recommended to the Commissioner.

PROCEEDINGS

An expedited administrative enforcement hearing was held before Administrative Law Judges ("ALJs") Susan J. DuBois and P. Nicholas Garlick of the New York State Department of Environmental Conservation, ("DEC" or the "Department"), Office of Hearings and Mediation Services. The hearing was held on January 29, 2001, January 30, 2001, February 1, 2001, February 2, 2001 and March 19, 2001 in the Department's Region 3 Office, 21 South Putt Corners Road, New Paltz, New York.

This action was commenced by DEC Staff by service of a Notice of Hearing and Complaint accompanied by a Motion for Expedited Fact Finding dated May 11, 2000. Respondents denied the allegations, in their Answer dated May 15, 2000. The parties failed to reach a negotiated settlement of this matter. Subsequently, on August 15, 2000, ALJ DuBois granted DEC Staff's Motion for Expedited Hearing and ruled that the limited subject of the hearing would be: whether the Respondents unlawfully conducted an activity without a permit.

Two additional rulings were made before the hearing commenced. On December 1, 2000, the ALJs ruled to resolve disputes that arose during discovery. Then, on January 18, 2001, the ALJs denied DEC Staff's Motion for Order Without Hearing and struck twelve of the Respondents' thirteen affirmative defenses.

DEC Staff was represented in this action by Steven Governman, Esq., Assistant Regional Attorney, DEC Region 3. DEC Staff called as their witnesses: Theodore Alfred Kerpez, Ph.D., a DEC staff wildlife biologist; Robert G. Torgersen, a landscape architect and wetlands specialist employed as a consultant by the Respondents; Lance Kolts, a DEC Staff Fish and Wildlife Technician 3; and, Roy A. Jacobson, Jr., a DEC Staff biologist.

The Respondents were represented by Dennis Lynch, Esq. and Burton Dorfman, Esq. of the law firm Dorfman, Lynch & Knoebel, Nyack, New York. The Respondents presented the following witnesses: Michael P. Bontje, the President of Lang Associates, an environmental consulting firm employed by the Respondents; John Magee, one of the Respondents; and, Joseph Corless, a licensed New York State engineer and surveyor also employed by the Respondents.

DEC Staff called one rebuttal witness, K. Luke Kalarical, Director of the Department of Environmental Control for the Town of Clarkstown.

Final hearing transcripts were received by the Office of Hearings and Mediation Services on April 2, 2001. The hearing record was closed upon receipt of the parties' closing briefs on April 26, 2001.

BACKGROUND

Factually, this is a very simple dispute. The official DEC map depicting the boundary of freshwater wetland NA-4 on the Respondents' property is unclear and has two lines which may be the boundary of NA-4. One line, advanced by the Respondents, contains 5.075 acres of wetland and the other, advanced by DEC Staff, contains 5.535 acres of wetland. If the line advanced by the Respondents is the actual boundary, then no construction activity occurred in NA-4. If the line advanced by DEC Staff is the actual boundary, the construction activity occurred within NA-4. The line advanced by DEC Staff has been adopted by the United States Army Corps of Engineers ("ACOE") as the official, undisputed boundary of wetlands under its jurisdiction ("federal wetlands").

The Respondents have received local approval, including a building permit, to commence construction of a 30,000 square foot office building known as 'Building 20A'. Concrete footings and foundations have been poured at the site, a significant amount of filling and grading has occurred, and the steel frame for the building has been erected. There is no dispute regarding the location of the building on the site, that construction has begun, or that filling and grading has occurred. There is also no dispute that DEC Staff has not issued a state wetlands permit for this work. The only dispute is which line on the map delineates the boundary of DEC freshwater wetland NA-4.

DEC STAFF'S POSITION

DEC Staff asserts that the line on the official freshwater wetlands map depicting the larger wetland represents the extent of freshwater wetland NA-4. Using DEC's proposed line, the ACOE wetland is identical to the DEC wetland. DEC Staff contends that the official wetlands map is confusing and unclear and it is necessary to examine other documents regarding NA-4 to determine that the line depicting the larger wetland has been understood by the parties as the boundary in the past.

THE RESPONDENTS' POSITION

Respondents assert that the line on the official freshwater wetlands map depicting the smaller wetland represents the extent of the freshwater wetland and the boundary of NA-4 is not the same as the ACOE wetland boundary. Regarding the other documents presented by DEC Staff supporting the contention that NA-4 is larger, Respondents assert that these documents contain mistakes and should not be relied upon.

FINDINGS OF FACT

The Respondents

Bradley Industrial Park ("Bradley") is a New York State partnership that is also known as Bradley Corporate Park. John F. Magee and Patrick Magee are general partners in Bradley.

The Site

  1. The Respondents, either collectively or individually, are the owners of several parcels encompassing approximately 26.2 acres of real property located in the Towns of Clarkstown and Orangetown, Rockland County, State of New York, known as Bradley Corporate Park ("site").
  2. The alleged violation in the instant action occurred on a portion of the site, located in the Town of Clarkstown and depicted on Tax Map Section 88, Block A, Lot 11, as maintained by the Town of Clarkstown.

The Wetland

  1. The site contains a portion of a freshwater wetland designated as DEC freshwater wetland NA-4. NA-4 is a duly designated, Class I freshwater wetland as defined in state law.
  2. In October 1984, Robert Torgersen, a consultant employed by the Respondents, produced the first wetland delineation map depicting the boundary of NA-4 on the site. This map was later certified by DEC Staff.
  3. The boundaries of NA-4 have moved landward on the site over the past seventeen years. This has increased the acreage of the site that has become subject to the jurisdiction of DEC. The reasons for NA-4's expansion are disputed.(1)

The Official Map

  1. The current site map depicting the official DEC certified boundary for NA-4, and its associated 100-foot buffer zone was signed on June 11, 1999, by Lance Kolts, of DEC Staff ("1999 official map") (Exhibit 19).
  2. On its face, the 1999 official map is unclear as to which of two lines represents the boundary of NA-4 on the site.
  3. The 1999 official map is nearly identical to the 1996 official map which was certified by Dr. Theodore A. Kerpez on July 8, 1996.

The Alleged Violation

  1. The Respondents have filled an area on the site recognized as a federal wetland.(2) Atop this fill, Respondents have constructed concrete footings and erected the steel skeleton of a 30,000 square foot commercial office building.
  2. The Respondents' construction was undertaken with the approval of the Town of Clarkstown Building Department. The skeleton of the building on the site is located exactly as indicated on the site plan.
  3. All work at the site has been performed by Bradley Corporate Park.

Development of the 1996 and 1999 Official Maps

  1. On February 27, 1996, Mr. Torgersen visited the site to establish the boundary of NA-4. He placed sequentially numbered flags along the boundary of the wetland. These flags (A-1 through A-67) appear on both the 1999 official map and the 1996 official map.
  2. On April 11, 1996, Joseph Corless, a licensed land surveyor hired by the Respondents, produced a document entitled "Site Plan for Bradley Corporate Park" ("4/11/96 site plan") which included the location of Mr. Torgersen's flags along the boundary of NA-4 on a map of the site. The 4/11/96 site plan identified 5.075 acres of wetlands.
  3. Also, on April 11, 1996, Mr. Torgersen sent a cover letter and the 4/11/96 site plan to the ACOE for the purposes of confirming the boundaries of the federally regulated wetlands on the site. The cover letter states that the total site is 26.2 acres and the wetlands area is 5.075 acres.
  4. On May 31, 1996, representatives of the ACOE met with Mr. Torgersen and his son, Peter, at the site and conducted a field verification of the wetland boundary. Following this visit, the ACOE requested modifications to the wetland boundary to include four additional areas in the wetland. Peter Torgersen drew these four areas by hand on enlargements of the map and faxed these drawings to Mr. Corless' office.
  5. On June 13, 1996, Mr. Corless, using the 4/11/96 site plan, produced a revised site plan ("6/13/96 site plan") incorporating most of the changes to the boundaries of the wetland requested by the ACOE.(3) The 6/13/96 site plan(4) resulted in identification of 5.535 acres of wetlands on the site under the jurisdiction of ACOE.
  6. On June 17, 1996, Mr. Torgersen sent a cover letter and the 6/13/96 site plan to ACOE. The cover letter reads, in part, "The total site is 26.2 acres and the wetlands area is 5.535 acres".
  7. By letter dated June 26, 1996, the ACOE informed the Respondents that following the site inspection on May 31, 1996, ACOE had confirmed that the 6/13/96 site plan accurately represented the extent of federal wetlands on the site. The letter stated that the size of the wetland on the site is 5.535 acres.
  8. By letter dated July 2, 1996, Mr. Torgersen informed Dr. Theodore Kerpez, a member of DEC Staff, of the changes to the wetland boundary requested by the ACOE. Mr. Torgersen also included a wetland delineation form, four copies of the 6/13/96 site plan that had been slightly revised ("revised 6/13/96 site plan")(5) and a cover letter stating that the wetland was 5.535 acres. Mr. Torgersen requested that Dr. Kerpez review the wetland boundaries depicted thereon. Mr. Torgersen also requested that Dr. Kerpez certify the boundaries, sign the copies of the revised site plan and then send three copies back to Mr. Torgersen.
  9. On July 8, 1996, Dr. Kerpez signed and dated the revised 6/13/96 site plan in a signature block creating the 1996 official map. This map expired on February 27, 1999, three years after the initial flagging. The language within the signature block reads "The freshwater wetland boundary as represented on these plans accurately depicts the limits of freshwater wetland NA-4 as delineated by Robert G. Torgersen on 2/27/96."
  10. By letter dated May 26, 1999 Mr. Torgersen requested Mr. Kolts to recertify the boundaries and submitted copies of the 1996 official map with two small changes. First, Mr. Torgersen included a second signature block for Mr. Kolts' signature. Second, Mr. Torgersen wrote the word "wetlands" in two of the three areas on the map where the ACOE had requested changes in the wetland map from the delineation done by Mr. Torgersen on February 27, 1996.(6) The area on the map where Mr. Torgersen wrote "wetlands" is the location of the instant violation. This map was only sent to DEC Staff and was not prepared for any other purpose.
  11. On June 11, 1999, Lance Kolts recertified the 1996 official map with the two changes noted directly above, creating the 1999 official map. The 1999 official map is identical to the map certified by Dr. Kerpez in July 1996 except it has an additional signature block for Mr. Kolts' signature and the word "wetlands" has been added in two places.

Past Construction on the Site

  1. In 1990, the Respondents applied to DEC Staff for a permit to develop a portion of the adjacent area to NA-4 in connection with expanding an existing building on site called the "Tri-Seal" ("Tri-Seal expansion"). The area of the site involved in the 1990 permit application is not the same as the area of the instant alleged violation.
  2. Before DEC Staff would issue a wetlands permit, DEC Staff insisted that NA-4's boundary be redelineated. This redelineation was completed and showed that the wetland had not moved since the 1984 delineation. This result was confirmed by Lance Kolts during a field inspection on October 1, 1990. Thereafter expansion plans and the permit application were put in abeyance.
  3. On February 28, 1997, Mr. Torgersen produced a series of four drawings in support of the state wetland permit application for the Tri-Seal expansion. Two of these drawings are maps which show the boundary of the ACOE wetlands and DEC wetlands on the property as congruent in all aspects. The boundary is captioned "limits of wetlands flagged 2-27-96 by Robert Torgersen." The maps also include a buffer line captioned "100 foot buffer" from the federal wetland boundary.
  4. DEC Staff issued a wetlands permit on September 17, 1997 for the Tri-Seal expansion that allowed the Respondents to modify 0.72 acres of adjacent area next to NA-4. The area covered by this permit is not the same location of the site as that of the violations alleged in the instant action.

The Present Construction

  1. On June 1, 1999, Mr. Corless produced a map of site of building 20A. The descriptions of wetland impacts were added to this map by Mr. Torgersen. This map incorrectly depicts the boundary of federal wetlands by using the February 27, 1996 delineation and captions the line "NYSDEC and ACE Wetland Limits". This map was submitted with the Respondents' application for a State wetlands permit in March 2000.
  2. Construction activity at the site commenced in December 1999 or January 2000.

The Instant Enforcement Action

  1. The violations alleged in the instant enforcement action came to the attention of DEC Staff on March 10, 2000, when Mr. Kolts visited the site with Mr. Torgersen. At the site, Mr. Kolts observed that construction was underway, concrete footings and foundations had been installed and that extensive clearing, filling, and excavating had taken place.
  2. By documents dated 3/15/00, the Respondents submitted an application to DEC Staff for a freshwater wetlands permit.
  3. On March 17, 2000, Mr. Kolts drafted a memo in which he relates his visit the week before to the site. In this memo, Mr. Kolts states he was told that the building was within 100 feet of wetland, but not in wetland itself.
  4. On March 23, 2000, Mr. Kolts filed a Law Enforcement Investigation Request. In this written request, Mr. Kolts reported that clearing and grading had occurred in the adjacent area of NA-4, but not in NA-4 itself. Mr. Kolts also related being told during his visit that the building was intended to be ready for occupancy by Bell Atlantic in November 2000.
  5. On March 30, 2000, DEC Staff stamped the Respondents' wetland permit application as received.
  6. On May 9, 2000, the Respondents were served with an administrative complaint which commenced this action.
  7. By letter dated May 12, 2000, DEC staff notified the Respondents that, pursuant to 6 NYCRR 621.3(f), processing of their state wetlands permit application was suspended.
  8. On August 2, 2000, members of DEC Staff, including Mr. Kolts, visited site and took photos. During this visit, Mr. Kolts observed steel work, clearing and filling on the site. He also completed a field inspection report.
  9. On September 21, 2000, members of DEC Staff including Mr. Kolts and Mr. Jacobson, visited the site, took photos, made measurements and dug test holes. During this visit, Mr. Jacobson completed a Freshwater Field Inspection Report.
  10. The boundary of NA-4 is congruent with the boundary of the federal wetlands on the site and the thicker line on the 1999 official map represents the boundary of NA-4.
  11. Building 20A has been constructed in NA-4 and its adjacent area. Filling and grading has also occurred within the wetland and its adjacent area. Erosion has occurred on the disturbed area, nearly filling a silt fence with sediment and creating the potential for erosion into NA-4.

JURISDICTION

In 1975, the New York State Legislature created Article 24 of the ECL to protect freshwater wetlands larger than 12.4 acres and wetlands of unusual local importance ("State wetlands"). DEC subsequently promulgated 6 NYCRR Parts 662-665 which implement New York State's regulatory scheme. This scheme involved identifying all State wetlands, locating them on maps, and after due public notice, promulgating by Order of the Commissioner the final freshwater wetlands maps. A copy of the map and the order was to be filed in the office of clerk of each local government in which each wetland was located (ECL §24-0301(5)).

While not specifically raised in the Respondents' papers, at the hearing Respondents did assert that the maps depicting NA-4 were not properly filed. This was disproved by the production of a copy of the receipt of the map signed by the Town Clerk of the Town of Clarkstown, and a copy of the Commissioner's Order adopting the map.

APPLICABLE REGULATIONS

The regulations provide that in DEC administrative enforcement actions that DEC Staff bears the burden of proving that the Respondents undertook an activity for which a permit was required (6 NYCRR 622.11(b)(1)). In this case, DEC Staff must prove that construction activity occurred at the site both within NA-4 and its adjacent area.

The standard of proof that DEC Staff must meet is found at 6 NYCRR 622.11(c) which reads in part:

"whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation."

Since there is no higher standard applicable here, in order for DEC Staff to prevail, it must prove by a preponderance of the evidence that a violation occurred.

One other regulatory provision is also important here. Specifically, 6 NYCRR 622.11(a)(9) states:

"all maps, surveys and official records affecting real property, which are on file in the State in the office of the registrar of any county, any county clerk, any court of record or any department of the State or City of New York are prima facie evidence of their contents."

Both the 1996 and 1999 official maps are maps and/or surveys on file with DEC Staff. Thus, 6 NYCRR 622.11(a)(9) applies. Black's Law Dictionary defines "prima facie evidence" as:

"evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient."

Thus, the 1996 official map and 1999 official map establish the boundaries of the NA-4. However, either party may present evidence to rebut or challenge the boundaries established in the 1996 and 1999 official maps.

DISCUSSION

As stated above, this dispute is simply which line on the 1999 official map depicts the boundary of NA-4 on the site. This is the only fact in dispute. Unfortunately, the 1999 official map is not entirely clear. DEC Staff asserts that the boundary is the same boundary certified by the ACOE (containing 5.535 acres of wetland). Respondent argues that the correct boundary is a line on the map depicting the boundary as flagged by Robert Torgersen on February 27, 1996 (containing 5.075 acres of wetland). In order to determine which position is correct, the logical starting point is to carefully examine the 1999 official map.

The 1999 official map

The 1999 official map is a 36" x 48" document entitled "Site Plan for Bradley Corporate Park" that contains a signature block signed by Lance Kolts on June 11, 1999. This map depicts a part or all of the 26.2 acre site, including the boundary of NA-4. Of relevance to this matter, there are two lines. A copy of the relevant portion of this map is included as Appendix A of this report.

The first boundary line is the one the Respondents argue. It is a thinner line depicting the boundary of NA-4 as identified by field verification by Robert Torgersen on February 27, 1996. This line is a single, unbroken, thinner line regularly punctuated by sequentially numbered flags. This line is completely obscured by the thicker line except in three places, where it clearly deviates from the thicker line. There is only one caption on this thinner line, which reads "Freshwater wetlands flagged by 2/27/96 by Robert Torgersen." However, the arrow from this caption points to a spot where the thinner line and the thicker line overlap. The triangles along this thinner line depict the location of flags that Mr. Torgersen placed in the field that were later located by Mr. Corless, the Respondents' surveyor. The area of wetland represented by this line is 5.075 acres.

DEC Staff argues that the second line is the boundary. It is a single, unbroken, thicker line which identifies wetlands under the jurisdiction of ACOE.(7) This line on the 1999 official map has three captions with arrows pointing toward it. The caption on the left side of the map states "Revised Wetland Limits Requested by AEC on 5/8/96" and has two arrows pointing to different sections of the line. The center caption reads "Freshwater wetlands flagged by 2/27/96 by Robert Torgersen" and the caption on the right side of the map reads "Revision No. 1 May 1996 Revised limit requested by ACE on 5/8/96." Both the second and third caption only have one arrow pointing to the thicker line.

The 1999 official map also contains three other significant features. First, at the bottom of the map is a signature block that reads "the freshwater wetland boundary as represented on these plans accurately depicts the limits of freshwater wetlands NA-4 as delineated by Robert Torgersen on 2/27/96." This supports the Respondents' contention, because Mr. Torgersen delineated the smaller wetland in February 1996 and the boundary of the larger wetland was not identified until May 1996.

Second, there is a dotted line that runs two inches landward of the heavier line (landward of the ACOE wetland boundary).(8) This dotted line is captioned "100 foot buffer" and "100 foot wetland buffer."(9) This supports DEC Staff's contention because State law, not federal law, requires a 100-foot buffer from the boundary of the wetland. Since the buffer line is obviously drawn from the larger wetland, it appears that the larger wetland is the State wetland.

Third, in two of the three places in the map where the thicker line departs from the thinner line (encompassing a greater area) the word "wetlands" is written. These two areas are in the immediate area of the violations. This supports DEC Staff's position that these areas were considered wetlands.

It is unclear from the map which is the correct boundary for NA-4. Even if it were unambiguous, the question of which line on the map is the correct boundary does not automatically resolve the larger question of whether the Respondents conducted activities within NA-4. The regulations clearly allow parties in enforcement actions to rebut information contained in official maps. In this case, a great deal of time was spent at the hearing by both parties attempting to demonstrate that their respective positions were correct.

Circumstances Surrounding the Signing of the 1999 Official Map

Both Mr. Kolts and Mr. Torgersen testified at the hearing regarding the circumstances surrounding the signing of the 1999 Official Map. The 1996 Official Map expired three years after the initial delineation on February 27, 1996. Thus, when the Respondents began planning to construct Building 20A in May 1999 a recertified State wetlands map was needed. Pursuant to instructions from the Respondents, on May 26, 1999, Mr. Torgersen sent a copy of the 1996 official map (with two revisions)(10) to Mr. Kolts at DEC with a cover letter. The cover letter stated that the plan "shows the required 100 foot wetlands buffer". Mr. Kolts then signed the map on June 11, 1999, and thus created the 1999 official map.

Mr. Kolts testified that he reviewed the cover letter and the entire map before signing it. He believed that the thicker line was the line he was certifying and based this belief in part on the placement of the buffer line and the words "wetlands" that were written in the now disputed areas. He says he noticed the February 27, 1996 date in the signature block that he signed but paid it little attention (t. 2:125-135).

Mr. Torgersen testified that he believed that the boundary of NA-4 was the thinner line when made his submission to Mr. Kolts in 1999. He stated that the wetlands buffer depicted on the map was an error (carried forward from the 1996 official map) but that he did not catch the error even though he reviewed the map and the buffer line before submitting it (t. 2:83). When asked why he had added the word "wetlands" in two of the three now disputed areas, he responded that he was clarifying that these areas were "wetlands, Army Corps wetlands" (t. 2:85). However, this map was prepared for submission to DEC and not to ACOE and Mr. Torgersen admitted that he had clarified the map for the benefit of Mr. Kolts (t. 2:88).

We find Mr. Torgersen's assertion that he reviewed the buffer line on the 1999 official map and did not catch the error difficult to believe. When coupled with his clarification of the map with the word "wetlands" in two crucial places for a submission only to DEC, we are led to the conclusion that at the time he made the submission to DEC, he understood the boundary of NA-4 to be the thicker line. This is the same understanding Mr. Kolts had. This alone would be enough for us to rule in favor of DEC Staff's interpretation of the map, however, there is additional information in the record that bolsters this conclusion.

The Parties' Prior Conduct

As discussed above, the 1999 official map and the 1996 official map contain identical boundary lines for the wetland buffer as well as the thinner, flagged line (advanced by the Respondents) and the thicker, ACOE line (advanced by DEC Staff). The 1996 official map was the basis for a series of drawings in support of Respondents' application in 1997 for construction of the Tri-Seal expansion.

At the hearing, the DEC Staff pointed to a course of conduct between DEC Staff and the Respondents over the past five years involving the 1996 official map and the boundary of NA-4 on the Respondents' property. As discussed above, the Respondents have applied for and received a DEC permit to construct in the adjacent area of NA-4 in connection with the Tri-Seal expansion. On the drawings and maps for this project prepared by Mr. Torgersen for DEC, the boundary of the State and federal wetlands are shown as being congruent in all aspects and following the course of the thicker line on both the 1996 and 1999 official maps.

When asked about this at the hearing, Mr. Torgersen stated that the wetland boundaries depicted on these maps were a mistake (t. 1:169) and that he was just using the most conservative approach. Again, Mr. Torgersen's explanation is not credible. It is apparent that both the Respondents and DEC Staff have viewed the boundary of NA-4 as the thicker line in permit applications in the past.

Circumstances Surrounding the Signing of the 1996 Official Map

Since the 1996 official map and the 1999 official map are nearly identical, the parties spent considerable time at the hearing discussing the circumstances surrounding the signing of the 1996 official map. This map was sent by Mr. Torgersen to Dr. Kerpez, who at that time managed DEC's Region 3 wetlands program.

DEC Staff presented the testimony of Dr. Kerpez at the hearing. Dr. Kerpez stated that before he signed the 1996 official map he reviewed the map, the cover letter, and the wetland delineation form. After reviewing this material Dr. Kerpez testified that he believed that the ACOE boundary and DEC boundary were congruent. In fact, he testified that he would not have signed the map if the boundaries were different unless the difference was somehow explained. He stated that he certified the map without visiting the site, based upon the field work of ACOE.

At the hearing, DEC Staff produced the cover letter from Mr. Torgersen to Dr. Kerpez requesting his signature in 1996. In this letter, Mr. Torgersen explained that the map had been modified after ACOE site visit in May 1996 and states that "The total site is 26.2 acres and the wetlands area is 5.535 acres." It is undisputed that this acreage is the area contained within the thicker line.

At the hearing, Mr. Torgersen testified that he thought this map showed the thinner line as the official DEC line. He was asked about the acreage reference in this letter and he said it was a mistake and should have been 5.075 acres (t. 1:247). The mistake arose when he copied text from a June 17, 1996 letter to ACOE regarding the size of the ACE wetlands on the site. Mr. Torgersen also testified that the buffer line on this map was also a mistake and that he didn't review the buffer line before he sent it to Dr. Kerpez (t. 1:246). Again, Mr. Torgersen's explanations are not persuasive.

Other Maps

DEC Staff produced another map drafted by Mr. Torgersen on the same day as the site plan he sent to Dr. Kerpez for signature. This map is nearly identical to the 1996 official map except it does not have a signature block and the dotted line depicting the wetland buffer clearly follows the thinner line on the map that Respondents argue marks the edge of the DEC wetlands. It was this map that was sent to the ACOE and later found to accurately depict the extent of federal wetlands on the site.

DEC argues that since Mr. Torgersen produced these two maps on the same day, one showing the buffer following the thicker line and the other showing the buffer following the thinner line, and because he chose to send the one in which the buffer follows the thicker line to be signed by Dr. Kerpez, Mr. Torgersen intended that the DEC wetland should be 5.535 acres as depicted by the thicker line. When questioned about this at the hearing, Mr. Torgersen said he made a mistake and should have sent the map he sent to ACOE to Dr. Kerpez.

All of this evidence clearly indicates that both DEC Staff and the Respondents have understood the boundary of NA-4 to be the thicker line.

Respondents' Arguments

In an effort to refute DEC Staff's assertions, the Respondents presented a series of unpersuasive arguments which were summarized in their closing brief.

First, the Respondents assert that DEC Staff admitted at the hearing that no construction activity occurred in NA-4; specifically, that DEC Staff biologist Roy Jacobson stated that he observed Building 20A outside the wetland during cross examination (t. 3:42-44). However, the Respondents have taken Mr. Jacobson's statements out of context. The witness stated that when he viewed the site on September 21, 2000, the edge of the wetland he observed that day was separated from Building 20A because of filling and grading activities beneath and around the building. It would have been impossible for the witness to have seen the original (official) boundary of NA-4 because it had been filled.

In a further effort to support this point, the Respondents point to a field sketch prepared by Mr. Kolts on August 2, 2000, which the Respondents argue shows the boundary of NA-4 as being the thinner line on the 1999 official map. The field sketch is a rough, hand-drawn sketch and is clearly not to scale. Reliance on this hastily completed sketch regarding the location of the official boundary of NA-4 is misplaced. Similarly, Respondents reliance on Mr. Kolts' Law Enforcement Investigation Request dated March 23, 2000, which states that Building 20A is "less than 70 feet from the wetland," is misplaced. This document was prepared shortly after DEC Staff's discovery of the alleged violation, while the investigation was proceeding. Again, Mr. Kolts observed that Building 20A was some distance from the edge of NA-4 because of the filling on NA-4.

Second, Respondents assert that since the thicker line was not derived as the result of sequential flagging in the field, that it cannot be the true boundary of NA-4. Respondents point to the official "Freshwater Wetlands Delineation Manual" to support their position. The manual states "please consider sequentially numbering and initialing the flags. When flagging, be sure to close loops on themselves or to property boundaries." (p.21). However, this manual does not mandate the use of sequentially numbered flags, nor does it state that wetlands that are not flagged cannot be wetlands. It is telling that the manual is not entitled the "Freshwater Wetlands Flagging Manual."

The manual defines delineation as "more precise depiction of the boundary of the wetland than is possible on the 1:24,000 maps promulgated by DEC" (p. 1). While the placement of sequential flags along the boundary of a wetland is mentioned and seems to be the preferred practice, it is not the only method for identifying wetland boundaries. Given the facts of this case and the method in which the boundary of the ACOE wetlands was derived, it is entirely reasonable that the three areas added to the wetland by the ACOE were not sequentially flagged. As discussed above, when the ACOE representatives visited the site in May 1996, they identified three areas of wetlands overlooked by Mr. Torgersen when he flagged the wetland boundary in February of that year. These areas were sketched by Mr. Torgersen's son, faxed to Mr. Corless, and added to the maps. The Respondents argued that in order for these three areas to be considered part of NA-4, the ACOE would have had to have placed sequential flags around these three areas of wetlands. This argument is meritless. There is more than one way to delineate a wetland and more than one method was used to delineate NA-4 in 1996.

Third, the Respondents contend that there is nothing in the record supporting the contention that there was significant activity within the buffer area of NA-4. As discussed above, Building 20A sits atop fill in both NA-4 and its buffer area. Thus, the Respondents' contention that any activity that took place within the buffer area did not substantially affect the wetland must be rejected. The fact that the Respondents placed fill and constructed a building in the buffer and wetland completely destroyed any wetland value which that portion of NA-4 provided. Thus, the Respondents' third affirmative defense, asserted in their answer and raised in their closing brief, is without merit. In addition, it is clear from the record that there is a threat of erosion from the disturbed areas of the buffer area into NA-4.

Fourth, the Respondents' contention that they thought they had all the necessary approvals(11) to commence construction is also unavailing. It is a developer's responsibility to obtain all necessary approvals before commencing construction. In this case, the Respondents failed to obtain a DEC wetland permit before disturbing NA-4 and its buffer area. Whether they had thought that they had obtained such a permit is irrelevant to the issue in this expedited fact finding.

Fifth, the Respondents contend that it is fundamentally unfair to use the 1999 official map as the basis of an enforcement action because the boundary of NA-4 is ambiguous. We reject this argument because, as discussed earlier, we find as a fact that both DEC Staff and the Respondents understood the boundary of NA-4 to be the thicker line. Thus, the Respondents had adequate warning of the location of the boundary of NA-4 and this enforcement proceeding is neither unfair nor 'arbitrary and discriminatory'. None of the cases cited by the Respondents in their brief on this point are relevant because they all deal with situations where the alleged violator was not on notice, which is not the case here.

Sixth, the Respondents assert that DEC Staff is bound by its practice of using sequential flagging to delineate wetlands and cannot assert in an enforcement action that a wetland boundary was established by any other method. As discussed above, there is no basis in law for this assertion.

Seventh, the Respondents argue that DEC Staff failed to sustain its burden of proof and have not shown by a preponderance of the evidence that the thicker line is the boundary of NA-4. We disagree. While the 1999 official map may be viewed as unclear at first glance, the facts surrounding its production, the past conduct of the parties using other maps depicting NA-4 as being contiguous with the ACOE wetlands, and circumstances surrounding the signing of the 1996 official map all clearly demonstrate that the parties have regarded the boundary of NA-4 and the ACOE wetlands as congruent, since at least 1996.

In summary, none of the arguments advanced by the Respondents invalidates the conclusion that the thicker line on the 1999 official map is the true boundary of NA-4 and has been understood as such by the parties. With the question of the boundary of NA-4 settled, the conclusion that the Respondents have undertake activities in both NA-4 and its adjacent area without a permit is inescapable.

CONCLUSIONS:

  1. The record demonstrates that the boundary of NA-4 is depicted by the thicker line on the 1999 official map and that the DEC and ACOE boundaries are congruent. Further, the Respondents, their consultants and DEC Staff all understood this at the time the current boundary map was signed in 1999 by Mr. Kolts and when the 1996 official map was signed in 1996 by Dr. Kerpez.
  2. The Respondents constructed a portion Building 20A in both freshwater wetland NA-4 and its adjacent area without first having obtained a Freshwater Wetland Permit from DEC Staff for these activities. In addition, filling has occurred both in NA-4 and in the adjacent area without a permit.

RECOMMENDATIONS:

This ruling concludes the expedited fact hearing portion of this matter. We recommend that the Commissioner issue an Order adopting our report, ordering the Respondents to cease and desist from any and all construction activities within NA-4 and its adjacent area, and remanding this matter back to the Office of Hearings and Mediation Services to schedule the second part of this hearing so that a record may be developed regarding the appropriate relief.

1 The Respondents contend that DEC is directly responsible for the growth of NA-4 on the site. In approving the closure plan for the neighboring landfill and changing the course of a stream so that it flowed directly into NA-4, Respondents contend DEC caused the growth of NA-4. In fact, the Respondents sued the owner of the landfill, the Town of Clarkstown, in federal court. In the resulting Federal Consent Order (dated 11/23/99) Clarkstown agreed to provide wetlands mitigation off-site to offset future wetlands destruction due to development on the site. DEC has not accepted responsibility for the growth of the wetland and has suggested at least one other possible cause based on the drainage patterns from other developed areas at the site.

2 There is nothing in the record to indicate that a permit from ACOE was ever obtained for this construction.

3 On the site visit, ACOE requested four changes to the wetland boundary. However, only three of these changes were reflected in the 6/13/96 site plan. Despite this error, ACOE did subsequently approve the 6/13/96 site plan as accurately representing the boundary of federal wetlands on the site.

4 The 6/13/96 site plan also included a line indicating the boundary of the 100 foot buffer measured from the flagged line representing the smaller wetland, as delineated by Mr. Torgersen on February 27, 1996.

5 The revised 6/13/96 site plan contains a line depicting the 100 foot wetlands buffer and this new buffer line follows the contours of the ACOE wetland boundary.

6 Respondents err in their closing brief by omitting this second difference between the 1996 official map and the 1999 official map.

7 The parties do not dispute the size of the ACOE wetlands. Respondents argue that the ACOE wetlands are larger than the DEC wetlands at the site. DEC Staff argue that both wetlands are the same size.

8 This line is exactly two inches from the heavier line in all but one location on the map, in an area well away from the area of the alleged violations.

9 The Respondents attempted to show at the hearing that the difference in captions at different points in the line indicated that the point where the caption reads "100 foot buffer" (the area of the alleged violation) is not the wetlands buffer, but rather some other, unexplained buffer. This is extremely unlikely and we believe that this line represents the State 100 foot wetlands buffer.

10 These revisions were the addition of a second signature block for Mr. Kolts' signature and the addition of the word "wetlands" in two areas where the ACOE wetlands extended beyond that delineated by Mr. Torgersen on February 27, 1996. The word "wetlands" occurs almost exactly where the violations alleged in this action occurred.

11 Mr. Magee testified that he was told by Mr. Kalarical, Director of the Department of Environmental Control for the Town of Clarkstown, that all necessary approvals were in place. However, when DEC Staff called Mr. Kalarical as a rebuttal witness at the hearing, he testified that he never made this statement (5:131).

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