D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Bruni, Louis - Order, January 18, 1995

Order, January 18, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of the Environmental Conservation Law of the
State of New York Article 25 and part 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

LOUIS BRUNI

RESPONDENT

ORDER

DEC No. 1-5101

WHEREAS:

  1. Pursuant to 6 NYCRR 622.10 (effective from July 14, 1985 to January 10, 1994), the Region 1 Staff of the Department of Environmental Conservation (the Department) served the Respondent, Louis Bruni, with a Motion for Summary Order dated July 27, 1992. In the Motion, the Department alleged that the Respondent built a pool and other structures in the adjacent area of a tidal wetland without a permit in violation of ECL Article 25 (Tidal Wetlands) and 6 NYCRR Part 661 (Tidal Wetlands - Land Use Restrictions). The Respondent opposed the Motion for Summary Order.
  2. In a ruling dated December 17, 1992, Administrative Law Judge (ALJ) Daniel P. O'Connell determined that a hearing was necessary to consider whether the Respondent's actions actually or potentially impacted the tidal wetland. With the ruling, ALJ O'Connell issued an order establishing uncontroverted facts for this action.
  3. The hearing began on March 23, 1993, and after adjournments duly taken, continued on March 23, 24 and 25, 1994. Kathleen Shea, Esq., Assistant Regional Attorney, represented the Region 1 Department Staff during the hearing. Gail Hintz, Esq., Assistant Regional Attorney, prepared the Department's closing brief and reply. Frank Doddato, Esq. from the law firm Capetola and Doddato, Williston Park, NY represented the Respondent.
  4. Upon a review of the record of this proceeding and the Hearing Report (copy attached) prepared by ALJ O'Connell, I concur with its Findings of Fact, Conclusions, Discussions and Recommendations subject to my comments below.
  5. The record of this hearing establishes that Louis Bruni owns property located at 2663 Island Channel Road in the Town of Hempstead, Nassau County which is adjacent to an inventoried tidal wetland called Treasure Lagoon.
  6. The record further shows that silt and vegetation cover the 100 ft. segment of the Former Island Channel Road located along the shore of Treasure Lagoon near the western portion of the Respondent's property. On occasion, the Former Island Channel Road is inundated by the tide. A catwalk authorized by a previously issued permit crosses the Former Island Channel Road on the Respondent's property. Collectively, these conditions prevent the Former Island Channel Road from functioning as a road. Therefore, the Former Island Channel Road does not limit the landward boundary of the adjacent area on the Site to less than 300 ft. [661.4(b)(1)(ii)].
  7. The Respondent installed an in-ground swimming pool, filled two separate portions of the Site, built a retaining wall, installed a fence, put white gravel fill around the pool, built an irregularly shaped wooden deck and concrete walkway, and installed a sprinkler system without having obtained a permit and variances from the Department. pursuant to ECL 25-0401 and 6 NYCRR 661.5, these structures and activities are regulated, and require a permit from the Department. Since he did not have a permit authorizing these regulated structures, the Respondent violated ECL 25-0401 in nine distinct instances. The violation associated with the retaining structure continued from May 22, 1992 to July 21, 1992.
  8. In determining the appropriate civil penalty, I have considered the potential adverse impacts to the environment and the Respondent's culpability. These circumstances were thoroughly discussed in the Report. Although no mitigating circumstances were demonstrated, I find that, in light of the fact that the violations involve a residential single-family property and that the remediation that will be required is estimated to cost $100,000, the recommended civil penalty is disproportionate to the offense. The civil penalties that are awarded are a modification of ALJ's recommendations to better reflect the severity of the individual violations.

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

  1. The Respondent violated ECL 25-0401(1) nine times when he filled two different areas of the Site in May 1992, put additional fill on the Site in July 1992, built a retaining structure from May 1992 to July 1992, and installed a pool, fence, wooden deck, concrete walkway and sprinkler system on the Site without a permit. Adding the retaining wall to the bulkhead shows that the violation concerning the retaining structure continued for sixty (60) days.
  2. The record does not support a finding that the Respondent installed plastic sheeting around the pool in the adjacent area in violation of ECL 25-0401(1). That charge is dismissed with prejudice.
  3. The Respondent, Louis Bruni, is assessed TEN THOUSAND DOLLARS ($10,000) for each of the three fill violations and both violations associated with the retaining structure and the pool (Subtotal: $10,000 x 5 violations = $50,000).
  4. The Respondent is assessed an additional ONE THOUSAND TWO HUNDRED DOLLARS ($1,200) for the continuing violation associated with building the retaining structure from May 22, 1992 to July 21, 1992. This civil penalty is apportioned evenly over the 60 days that the violation continued.
  5. The Respondent is assessed TWO THOUSAND DOLLARS ($2,000) for each violation associated with the fence, the wooden deck, the concrete walkway and the sprinkler system (Subtotal: $2,000 x 4 violations = $8,000).
  6. The Respondent shall pay the total civil penalty of FIFTY-NINE THOUSAND TWO HUNDRED DOLLARS ($59,200) within sixty (60) days after service of a conformed copy of this Order.
  7. Within ninety (90) days after service of a conformed copy of this Order upon the Respondent, Mr. Bruni shall provide the Region 1 Department Staff with a remediation plan. The remediation plan shall include removing all unauthorized structures including the pool, bulkhead, wooden deck, concrete walkway, fence, sprinkler system, the white gravel and all fill from the Site. After the Site is regraded to the elevation that existed when the Respondent purchased his property from the developer, the Site shall be seeded and mulched.
  8. When the Respondent files his remediation plan with the Region 1 Department Staff, the Respondent shall also provide the Department with a letter of credit or bond, payable to the New York State Department of Environmental Conservation in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000). The letter of credit or bond must be in a form acceptable to the Department. In the event the Respondent does not comply with paragraph VII above, the Department will call in the letter of credit or bond to complete the required remedial work.
  9. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 1 Director, NYSDEC, Building 40, SUNY Campus, Stony Brook, New York 11794.
  10. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

Dated: Albany, New York
January 18, 1995

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter of

Alleged Violations of Article 25 of the Environmental Conservation Law of the
State of New York (ECL) and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 661

- by -

LOUIS BRUNI

RESPONDENT

DEC No. R1-5101

HEARING REPORT

- by -

____________/s/____________
Daniel P. O'Connell
Administrative Law Judge

Summary

This Hearing Report originates from the denial of a Motion for Summary Order, and centers on whether the Respondent's actions caused, or could cause, environmental harm to an inventoried tidal wetland. In a Motion for Summary Order dated July 27, 1992, the Region 1 Staff of the Department of Environmental Conservation (the Department) alleged that Louis Bruni (the Respondent) violated ECL Article 25 (Tidal Wetlands Act) and 6 NYCRR part 661 by building a swimming pool and other improvements in the adjacent area of a tidal wetland without a permit. This Hearing Report concludes there is a potential for the Respondent's actions to impact the tidal wetland adversely. The Report recommends a civil penalty of $110,000 and remediation.

Proceedings

This administrative enforcement proceeding began on July 27, 1992 with service of a Motion for Summary Order upon the Respondent (6 NYCRR 622.10 effective from July 14, 1985 to January 10, 1994). With a cover letter dated September 4, 1992, the Respondent submitted papers opposing the Department's motion. With leave from Administrative Law Judge Daniel P. O'Connell, the Department filed a rebuttal to the Respondent's jurisdiction challenge on September 29, 1992. In a ruling dated October 2, 1993, ALJ O'Connell denied the Respondent's request to file a sur-reply because the Department's rebuttal contained repetitious and irrelevant information. Appendix A is a list of the documents submitted by the parties supporting the Motion for Summary Order.

In a ruling dated December 17, 1992, ALJ O'Connell identified a factual issue about whether the Respondent's actions caused, or could cause, environmental harm to the tidal wetland. The ruling also included an order establishing the uncontroverted facts in this action. Since the December 17, 1992 ruling reserved decision on the Respondent's liability and the relief requested by the Department, all issues raised by the parties during the course of this proceeding are addressed in this Hearing Report. Appendix B is a copy of the December 17, 1992 ruling.

The hearing began on March 23, 1993, and after adjournments duly taken, continued on March 23, 24 and 25, 1994. On March 25, 1994, the Respondent, the Department Staff, and ALJ O'Connell visited the Site. Upon the timely receipt of the parties closing briefs and replies, the record of this proceeding closed on September 14, 1994.

Kathleen Shea, Esq., Assistant Regional Attorney, represented the Region 1 Department Staff during the hearing. Gail Hintz, Esq., Assistant Regional Attorney, prepared the Department's closing brief and reply. Frank Doddato, Esq. from the law firm Capetola and Doddato, Williston Park, NY represented the Respondent. Appendix C is a list of the witnesses who testified at the hearing.

The Department's Charges and the Relief Sought

The Department contended that the Respondent's property, located at 2663 Island Channel Road, Seaford, Nassau County, is in and adjacent to an inventoried tidal wetland. The Department alleged that the Respondent violated ECL 25-0401(1) and 661.5 (Use Guidelines) by undertaking eleven separate activities on the Site without a permit. In addition, the Department alleged that the Respondent violated the development restrictions provided in 661.6(a)(1) and 611.6(a)(4).

According to the Department, the Respondent: (1) installed an in-ground swimming pool in the adjacent area on May 22, 1992, (2) filled part of the adjacent area on May 22, 1992, (3) filled part of the tidal wetlands on May 22, 1992, (4) built a bulkhead in the tidal wetland on May 22, 1992, (5) built a fence in the adjacent area on May 22, 1992, (6) added a retaining wall and a railing to the bulkhead in the tidal wetland on July 21, 1992, (7) installed plastic sheeting around the pool in the adjacent area on July 21, 1992, (8) placed white gravel fill over the plastic sheeting in the adjacent area on July 21, 1992, (9) built an irregularly shaped wooden deck in the adjacent area on July 21, 1992, (10) installed a concrete walkway in the adjacent area on July 21, 1992, and (11) installed a sprinkler system in the adjacent area on July 21, 1992.

The Department requested a total civil penalty of $150,000. The Department argued that the requested civil penalty is authorized by ECL 71-2503(1), and is consistent with the guidance provided in Civil Penalty Policy, dated June 20, 1990, and the Tidal Wetlands Enforcement Guidance Memorandum, dated February 8, 1990. The Department asked the Commissioner to order the Respondent to remove all the unauthorized structures and fill from the Site, and to guarantee the remediation with a $100,000 Letter of Credit.

The Respondent's Answer

The Respondent denied all the allegations. The Respondent asserted the following Affirmative Defenses: (1) the Department lacks subject matter jurisdiction, (2) alternatively, if there is jurisdiction, the Respondent's actions did not, and will not, adversely impact the tidal wetlands or the adjacent area, (3) the Department unlawfully obtained its evidence, and (4) ECL Article 25 (Tidal Wetlands Act) is unconstitutional. Based on these affirmative defenses, the Respondent asked the Commissioner to dismiss the charges.

Findings of Fact

Findings 1 - 13, are based on the papers filed by the parties supporting and opposing the Motion for Summary Order. The December 17, 1992 ruling established these findings as the uncontroverted facts for this proceeding. Findings 14 - 26 are additional facts based on the record that existed after the hearing. All Findings of Fact regarding this matter are repeated here for convenience.

  1. Louis Bruni, the Respondent, owns about 9110 square feet (sq. ft.) of property at 2663 Island Channel Road in the Town of Hempstead, Nassau County (the Site).
  2. The western property line of the Respondent's property adjoins Treasure Lagoon. Treasure Lagoon is a tidal wetland appearing on Tidal Wetland Map #626-500, and is classified as littoral zone (LZ). On the map, the approximate wetland boundary is the shoreline.
  3. The Site's northern and southern property lines are parallel to each other. The length of the northern property line is approximately 123 feet (ft.); the southern is approximately 100 ft. The eastern property line abuts Island Channel Road. This property line is at right angles to the north and south property lines, and is 82 ft. long.
  4. There is a two story house on the Site that occupies a building foot print of approximately 1,400 sq. ft. The distance from the back of the house to the low water mark of Treasure Lagoon is between 55 ft. and 75 ft.
  5. The road segment along Treasure Lagoon on the western portion of the Respondent's property is identified on the survey as "Formerly Island Channel Road." Although the road pavement remains in tact, a layer of silt with sparse vegetation covers portions of the former Island Channel Road. portions of the road segment are inundated. On the Site, a catwalk extends across the former Island Channel Road. The road segment is no longer used as a road.
  6. On August 13, 1991, Mr. Bruni filed an application for a tidal wetlands permit (Application No. 1-2820-01363/00001-0) with the Department to build an in-ground swimming pool and deck on the Site.
  7. By letter dated August 29, 1991, the Department's Region 1 Staff informed the Respondent that his proposal did not comply with the permit issuance criteria provided in part 661.
  8. On March 26, 1992, Mr. Bruni modified the project described in his permit application to include a bulkhead.
  9. On May 22, 1992, the Department's Region 1 Staff observed the following on the Site: (1) an in-ground swimming pool, (2) a fence, (3) two large piles of fill, and (4) a bulkhead.
  10. In addition to the preceding items, the following improvements are on the Site: (1) a retaining wall with a railing built on top of the bulkhead, (2) gravel forming an apron around the pool, and (3) an irregularly shaped deck by the back door. All improvements are landward of the bulkhead, and occupy an approximate area of 1,800 sq. ft.
  11. Mr. Bruni admitted to the Region 1 Department Staff that he was responsible for installing the pool, bulkhead, and other improvements. Mr. Bruni stated that he would pay a fine, but not remove the pool, the fill and the other improvements from the Site. Mr. Bruni also admitted that he made a down payment of $160,000 for his residence which is now worth $500,000.
  12. The Department did not issue a tidal wetlands permit to the Respondent to fill the Site or to construct the pool and other improvements.
  13. In addition to the structures described in Findings Nos. 10 and 11, the Respondent installed a sprinkler system, and poured a concrete walkway on the Site around July 21, 1992.
  14. Before the Respondent placed the white gravel fill around the pool, he put down landscape fabric.
  15. Under the authority of a permit (No. 10-87-1684) dated August 15, 1989, developers subdivided property adjacent to Treasure Lagoon into four single family building lots.
  16. Since Mr. Bruni subsequently bought one of the lots described above, the Staff provided him with a copy of the permit (No. 10-87-1684) on March 26, 1992.
  17. The permit (No. 10-87-1684) issued to the developers included conditions that established buffer zones and areas of restricted activity on the four lots including the property that Mr. Bruni purchased.
  18. The Respondent did not consider the Former Island Channel Road to be a substantial and functional structure when he filed his application with the Department in August 1991. Since August 1991, the condition of the Former Island Channel Road has not substantially changed.
  19. Mr. Bruni did not challenge the Department's jurisdiction over his property during the review of his permit application.
  20. The pool, the deck and the concrete walkway are less than 75 ft. from the tidal wetland. The retaining structure on the Site is within a few feet of the tidal wetland.
  21. In addition to the house and driveway, the pool, the irregularly shaped wooden deck and the concrete walkway are impermeable surfaces.
  22. The pool is between 629 and 650 sq. ft., and the wooden deck is about 328 sq. ft. Together the pool and deck cover about 10.6% of the 9,110 sq. ft. Site. Impervious surfaces, which include the house, driveway, pool, wooden deck, and the concrete walkway, cover 30.6% of the 9,110 sq. ft. Site.
  23. There is no direct evidence that the Respondent's actions have, as yet, caused any actual harm to the tidal wetlands.
  24. Placing the pool, fill and the retaining structure in close proximity to the tidal wetland in violation of the 75 ft. setback requirement [661.6(a)(1)], prevents the adjacent area from acting as a natural buffer to the tidal wetland particularly since the house is already closer than 75 ft. from the tidal wetland.
  25. Since all impervious structures on the Site cover 30.6% of the Site and are 75 ft. or less from the tidal wetland, the increased amount of runoff from the Site could potentially impact the water quality of the tidal wetland.

Discussion

  1. Jurisdiction

    The adjacent area of a tidal wetland extends 300 feet from the landward boundary of the tidal wetland [661.4(b)(1)(i)], or to the seaward edge of the closest lawfully and presently existing (i.e., as of August 20, 1977), functional and substantial fabricated structure (including, but not limited to, paved streets ...) which lies generally parallel to said most tidal wetland boundary and which is a minimum of 100 feet in length ... [661.4(b)(1)(ii)].

    The Respondent challenged the Department's jurisdiction over the Site. According to the Respondent, the Former Island Channel Road, located within a few feet of the tidal wetland on the western edge of the Site, is a substantial and functional structure. The Department argued, however, that the Former Island Channel Road is not a lawfully existing, substantial and functional structure.

    At issue is whether the Former Island Channel Road is functional. There were no significant factual disputes about the physical characteristics of the Former Island Channel Road. The December 17, 1992 ruling established Findings of Fact about the present condition of the Former Island Channel Road. Since the December 17, 1992 ruling did not completely settle this issue, however, the parties had an opportunity at the hearing to present additional evidence and argument about whether the Former Island Channel Road is functional within the meaning of 661.4(b)(1)(ii).

    The following facts are relevant to the jurisdiction question. Based on Tidal Wetlands Map No. 626-500, and Mr. Haje's affidavit (Exhibit 9), the Former Island Channel Road is located along the western portion of the Respondent's property next to Treasure Lagoon. Although part of the pavement remains intact, silt and vegetation cover portions of the Former Island Channel Road near the Respondent's property. High tides occasionally inundate this part of the Former Island Channel Road. A catwalk on the Site, authorized by permit No. 10-87-1684, extends across the Former Island Channel Road. photograph D attached to Exhibit 9 depicts these conditions.

    According to 661.4(b)(1), the adjacent area generally extends 300 ft. landward from the tidal wetland. Functional and substantial structures that are at least 100 ft. in length may limit the landward extension of the adjacent area to less than 300 ft. However, when a functional and substantial structure no longer meets the criteria in 661.4(b)(1)(ii), that structure no longer limits the landward boundary of the adjacent area [F.L.D. Construction Corp. Decision dated August 28, 1984, affm'd in F.L.D. Construction Corp. v. Williams 122 AD2d 189, 504 NYS2d 726 (1986); John and Eileen Dwyer, Decision dated February 4, 1988].

    The silt and vegetation, the occasional flooding, and the catwalk on the Site extending across the Former Island Channel Road prevent any vehicles and pedestrians from using the Former Island Channel Road on the Site as a road. Therefore, the Former Island Channel Road is not functional.

    In addition, the Respondent essentially admitted that the Former Island Channel Road is not functional when he filed an application for a tidal wetlands permit (Application No. 1-2820-01363/00001-0) on August 13, 1991 to build an in-ground swimming pool and deck on the Site. Though not dispositive of the issue, the Respondent filed his application without contesting the Department's jurisdiction over the Site. Furthermore, the Respondent did not show that the physical conditions of the Former Island Channel Road have changed since August 1991, when the Respondent filed his application, and when the Department initiated this enforcement action.

    The physical conditions of the Former Island Channel Road on the Site together with the Respondent's admission that the Former Island Channel Road is not functional show that the Respondent's jurisdiction challenge is without merit.

    Since the Former Island Channel Road is not functional, the dispute about whether the road is a lawfully existing structure is not determinative of the issue. Nevertheless, a brief discussion follows for completeness.

    The Department attempted to prove that the Former Island Channel Road is not a lawfully existing structure by offering a resolution by the Town of Hempstead that included a survey and description of the Site and adjacent properties. The Town's 1987 resolution moved a portion of Island Channel Road from its original location along Treasure Lagoon landward about 120 ft. Relocating a portion of Island Channel Road, however, does not make the continued existence of the abandoned road segment (i.e. the Former Island Channel Road) unlawful. Regardless of whether the abandoned road segment is a lawfully existing structure, the Department has jurisdiction over the Site because the Former Island Channel Road is not a functional structure.

  2. The Department's Evidence

    The Respondent claimed that the Department Staff unlawfully searched the Site on May 22, and July 21, 1992. Though given the opportunity, the Respondent did not present any legal argument or offer any proof to support this claim. At the hearing, the Respondent did not object to the ALJ's receipt of the Department's evidence. The Respondent, therefore, abandoned the claim.

  3. The Constitutionality of ECL Article 25

    The Respondent asserted that ECL Article 25 (Tidal Wetlands Act) is unconstitutional. Though given the opportunity, the Respondent did not present any legal argument on this issue. The Respondent, therefore, has abandoned this claim.

    Furthermore, a court of competent jurisdiction must determine whether ECL Article 25 is unconstitutional [Dimaggio v. Brown 19 NY2d 283, 291-292 (1967)]. Until that time, ECL Article 25 and its implementing regulations are presumed to be constitutional.

  4. Liability

    The Respondent raised two issues concerning liability. The first issue is a fact question about the permeability of the material under the white gravel on the Site. Impermeable surfaces in the adjacent area of inventoried tidal wetlands are regulated [ECL 25-0401(1)] and require compliance with the development restrictions outlined in 661.6(a)(4). The second issue concerns the number of violations that can be legally sustained based on the allegations in the Motion for Summary Order.

    1. The Material Under the White Gravel

      In the Motion for Summary Order, the Department alleged that the Respondent laid down impervious plastic sheeting before putting the white gravel fill around the pool. Since the December 17, 1992 ruling made no finding about the Department's allegation, the parties addressed this issue at the hearing.

      According to the affidavits filed in support of the Motion for Summary Order, Messrs. Hamilton and DuBois observed impervious plastic sheeting under the white gravel during their July 21, 1991 inspection of the Site. At the hearing, however, Mr. Bruni testified that before he put the white gravel around the pool in May 1992, he laid down permeable landscape fabric. Mr. Bruni presented a portion of the landscape material from the Site (Exhibit 27).

      During cross-examination, Mr. DuBois testified that when he was at the Site in November 1993, he observed the permeable landscape fabric described by Mr. Bruni. While at the Site in November 1993, Mr. DuBois recorded this observation in an inspection report (Exhibit 30). During their July 1992 inspection, however, Messrs. DuBois and Hamilton did not prepare any reports that described the plastic sheeting on the Site.

      The Staff's recorded observations about the material under the white gravel from the November 1993 site visit are more convincing than the Staff's undocumented inspection of the Site in July 1992. Consequently, I find that the material under the white gravel is landscape fabric rather than plastic sheeting. Though Mr. Bruni testified about what was under the white gravel, I gave little weight to the Respondent's testimony because of his demeanor at the hearing.

    2. The Number of Violations

      The second liability issue relates to the number of violations. According to the Department, multiple fill violations occurred when the Respondent filled two separate areas of the Site on May 22, 1992, and then put more fill on the Site on July 21, 1992. The Department also alleged that two separate violations occurred when the Respondent built a bulkhead on May 22, 1992 and a retaining wall on July 21, 1992.

      The Respondent contended, however, that filling two separate areas of the Site, and filling the Site on different dates should be considered one regulated activity. Similarly, the Respondent contended that building different parts of the bulkhead on different dates should be considered one regulated activity.

      At issue is whether multiple violations can result from repeating, or continuing, a distinct regulated activity. With respect to repeating an activity, the Commissioner has determined that if each of a respondent's actions in a regulated area are distinct regulated activities that would independently require a permit, then each action is a separate violation [Linda Wilton and Costello Marine, Inc., Order dated February 1, 1991]. Even though a single project includes many different activities, each activity that is discrete can independently support a separate finding of a violation. To limit the law otherwise would allow a respondent to perform unlimited construction with impunity after that respondent engaged in the first illegal activity [Beaver Dam Condominiums, Ltd., Order dated September 16, 1991].

      These authorities apply to the allegations about the fill. placing fill on two separate areas of the Site in May 1992 are two distinct regulated activities. putting additional fill (i.e., white gravel) around the pool in July 1992 is another distinct regulated activity. Since each distinct activity would independently require a permit, the Department may allege three separate fill violations.

      The Department inappropriately attempted to apply the principles in Linda Wilton and Beaver Dam Condominiums to the allegations concerning the bulkhead and the retaining wall. The record shows that the Respondent added the retaining wall to the bulkhead. The Respondent, therefore, built a single retaining structure on the Site rather than two distinct regulated structures.

      The Department also alleged that building the retaining structure was a continuous activity, and requested additional civil penalties as provided by ECL 71-2503(1). ECL 71-2503(1) states, in pertinent part, that "in the case of a continuing violation, each day's continuance thereof shall be deemed a separate and distinct violation."

      The Department Staff's observations of the Site on May 22, 1992 and on July 21, 1992 demonstrate the continuous nature of the violation associated with building the retaining structure on the Site. Therefore, the Commissioner should consider the allegations about the bulkhead and the retaining wall to be part of one regulated activity that continued for 60 days.

    3. Summary

      Based on the foregoing discussion, installing the material under the white gravel is not a regulated activity. With respect to this activity, the Respondent did not violate ECL 25-0401(1) and the Commissioner should dismiss this charge with prejudice.

      Filling two different areas of the Site in May 1992 are distinct regulated activities and constitute two separate violations. putting additional fill on the Site in July 1992 is another distinct regulated activity that constitutes the third fill violation. Since the retaining wall and the bulkhead are part of the same retaining structure, its construction constitutes a single regulated activity. However, the Respondent built the retaining structure from May 22, 1992 to July 21, 1992. The Respondent did not have a permit for these activities as required by ECL 25-0401(1). Therefore, the Respondent violated ECL 25-0401(1) four separate times. Building the retaining structure on the Site from May 22, 1992 to July 21, 1992 is a violation that continued for 60 days.

      The parties did not dispute the remaining allegations which are discussed here to clarify the exact number of violations. Without a permit from the Department, the Respondent installed: (1) the pool, (2) the fence, (3) the wooden deck, (4) the concrete walkway, and (5) the sprinkler system on the Site. By undertaking these five regulated actions without a permit the Respondent violated ECL 25-0401(1) five more times.

      In sum, the Respondent is liable for nine separate violations of ECL 25-0401(1). Adding the retaining wall to the bulkhead shows that the violation concerning the retaining structure continued from May 22, 1992 to July 21, 1992 (60 days).

  5. Relief

    The issue of relief includes determining the proper civil penalty, and deciding whether remediation is necessary. ECL 71-2503 provides for civil penalties of up to $10,000 for each violation of ECL Article 25. The Commissioner has provided additional guidance for determining the proper civil penalty in the Civil Penalty Policy, dated June 20, 1990, and the Tidal Wetlands Enforcement Guidance Memorandum, dated February 8, 1990. ECL 71-2503 also authorizes the Commissioner to order remediation. Remediation depends on environmental impacts whether actual or potential.

    1. The Civil Penalty

      The hearing focused on whether the Respondent's actions caused any actual and potential impacts to the tidal wetland. In addition to environmental impacts, the Department asked the Commissioner to consider other circumstances to determine the proper civil penalty. These other circumstances were the Respondent's culpability, his ability to pay a civil penalty, and the economic benefit received by the Respondent

      The Civil Penalty Policy recognizes that these circumstances could influence the civil penalty calculation (pp. 5, 9, and 10). However, there is not enough information in the record to draw any conclusions about the Respondent's ability to pay a civil penalty and the economic benefit received by the Respondent. Consequently, the discussion that follows addresses actual and potential environmental impacts, and the Respondent's culpability.

      1. Environmental Impacts

        The central question at the adjudicatory hearing was whether the Respondent's activities caused actual and potential impacts to the tidal wetland. Actual and potential environmental impacts are relevant to determining the appropriate civil penalty (Civil Penalty Policy p. 7). Such impacts are considered aggravating circumstances and can be the basis for increasing the civil penalty. Although the Civil Penalty Policy recognizes the appropriateness of reducing the civil penalty because of mitigating circumstances (p. 4), the absence of environmental impacts is not recognized as such. Therefore, the absence of environmental impacts would not warrant a downward adjustment in the civil penalty.

        There is no direct evidence that the Respondent's actions have, as yet, caused any actual environmental harm to the tidal wetlands.

        Potential impacts can be gauged with reference to whether the Respondent's activities meet the permitting criteria provided in the Tidal Wetlands Act (ECL Article 25) and its implementing regulations (6 NYCRR part 661). Even though the Respondent's regulated actions would be generally compatible [661.5(b)(29, 30, 57)], the evidence shows that the Respondent's activities would not be permitted because the location and design of the features on the Site violate 661.6(a)(1) and 661.6(a)(4).

        Putting fill, the pool and the retaining structure less than 75 ft. from the tidal wetland violates the 75 ft. minimum setback requirement provided in 661.6(a)(1) and the conditions of the permit (No. 10-87-1684) issued to the developers. The intent of the minimum setback requirement and the permit conditions is to establish a natural buffer zone on the Site next to the wetland. By putting these features so close to the wetland, however, the adjacent area on the Site will no longer buffer the tidal wetland. Since the previous permit (No. 10-87-1684) included a variance that allowed the developers to build the Respondent's house within 75 ft. of the tidal wetland, the Respondent's actions have further compounded the potential effects from violating 661.6(a)(1).

        On any lot, 661.6(a)(4) limits the amount of impervious surfaces in the adjacent area to 20%. The Respondent violated 661.6(a)(4) by covering 30.6% of the adjacent area on the Site with impervious surfaces. This development restriction is intended to limit the amount of runoff to the tidal wetland. Increased runoff could adversely affect water quality and thereby impact the wetland. Nevertheless, Dr. Johnson, theorized there would be little or no adverse effects from runoff. Since the material under the white gravel is permeable, Dr. Johnson stated that any runoff on the Site would percolate through the fill behind the retaining structure to the ground water rather than discharge directly to the tidal wetland.

        In addition to rain, the pool and sprinkler system on the Site are significant sources of potential runoff. All impervious surfaces on the Site including the house are 75 ft. or less from the tidal wetland. Based on the location and design of the regulated features on the Site, I reject Dr. Johnson's opinion, and conclude that runoff from the Site has the potential to adversely impact the tidal wetland.

        The Commissioner should consider the potential environmental impacts that may result from the Respondent's actions to be an aggravating factor that justifies a significant civil penalty.

      2. The Respondent's Culpability

        The Commissioner also has determined that a violator's culpable mental state may be a factor in deciding the proper civil penalty (Civil Penalty Policy, p. 9). The Civil Penalty Policy suggests considering: (1) the amount of control the Respondent had over the events constituting the violations, and (2) the likelihood that the Respondent knew his actions constituted violations.

        The Respondent owns the Site. Therefore, he has control over the Site.

        The Respondent argued that from the time he filed his permit application he believed that he did not need a tidal wetlands permit because the Former Island Channel Road limited the Department's jurisdiction over the Site. This argument speaks to the second point about how likely Mr. Bruni knew that his actions were violations.

        Based on the following events, the Respondent knew his actions constituted violations. On August 13, 1991, Mr. Bruni filed an application for a tidal wetlands permit for a pool (Application No. 1-2820-01363/00001-0). On August 29, 1991, the Department's Region 1 Staff informed the Respondent that his proposal did not meet the permit issuance criteria provided in part 661. At a conference with the Region 1 Department Staff on March 26, 1992, Mr. Bruni expanded the scope of his original proposal to include a bulkhead despite the Staff's August 29, 1991 letter.

        Under the authority of a permit (No. 10-87-1684) dated August 15, 1989, developers subdivided property adjacent to Treasure Lagoon into four single family building lots. Since Mr. Bruni subsequently bought one of the lots described above, the Staff provided him with a copy of the permit (No. 10-87-1684) on March 26, 1992. The permit (No. 10-87-1684) issued to the developers included conditions that established buffer zones and areas of restricted activity on the four lots including the property that Mr. Bruni purchased.

        Based on these circumstances and given that at no time prior to the initiation of this enforcement action did Mr. Bruni challenge the Department's jurisdiction over the Site, the Respondent knew his actions constituted violations. Therefore, I reject the Respondent's argument that he thought he did not need a tidal wetlands permit because the Former Island Channel Road limited the Department's jurisdiction over the Site. The Respondent's willful disregard for the regulatory process is a significant aggravating factor that further justifies a substantial civil penalty.

      3. The Recommended Civil Penalty

        The guidance offered in the Tidal Wetland Enforcement Guidance Memorandum suggests beginning at the maximum penalty amount (p. 7). As explained above, there are no mitigating circumstances that warrant a downward adjustment of the civil penalty. However, the potential impacts from the Respondent's actions and the Respondent's high degree of culpability are two significant aggravating factors that together justify a significant civil penalty.

        Accordingly, the Commissioner should assess the maximum civil penalty of $10,000 for each of the nine violations ($90,000), and an additional civil penalty of $20,000 for the continuous nature of the violation associated with building the retaining structure. The additional civil penalty should be apportioned evenly over the 60 days that the violation continued. The total recommended civil penalty, therefore, is $110,000.

    2. Remediation

      ECL 71-2503(1) states, in pertinent part, that the Commissioner has the power "to direct the violator ... to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation, insofar as possible within a reasonable time and under the supervision of the Commissioner." To guarantee remediation, the Department asked for a $100,000 Letter of Credit.

      Since the Respondent's actions have the could potentially harm the tidal wetland, the Department's request for remediation is appropriate. The Commissioner, therefore, should direct the Respondent to remove all unauthorized structures and fill from the Site.

      The Respondent dropped his objection to whether the Department has the authority to require a security instrument, but argued that the amount was excessive. However, the Respondent offered no proof to show that the estimated costs of remediating the Site would be substantially less than $100,000. Therefore, the Commissioner should direct the Respondent to supply a $100,000 Letter of Credit to insure remediation.

Conclusions

  1. The Former Island Channel Road located on the western edge of the Respondent's property next to Treasure Lagoon is not a substantial and functional structure pursuant to 661.4(b)(1)(ii).
  2. Installing permeable landscape fabric on the Site is not a regulated activity. With respect to this activity, the Respondent did not violate ECL 25-0401(1).
  3. The Respondent twice violated ECL 25-040(1) on about May 22, 1992 when he filled two separate areas on the Site without having a permit from the Department.
  4. The Respondent violated ECL 25-040(1) again when he placed additional fill, in the form of white gravel, on the Site on July 21, 1992.
  5. The Respondent violated ECL 25-040(1) when he built a retaining structure on the Site without a permit from the Department. Adding the retaining wall to the bulkhead establishes that the violation continued for 60 days from May 22, 1992 to July 21, 1992.
  6. The Respondent violated ECL 25-040(1) five more times when he installed the pool, fence, wooden deck, concrete walkway, and sprinkler system on his property without a permit from the Department.
  7. For the purpose of calculating the civil penalty, each violation of ECL Article 25 is a separate and distinct violation. Furthermore, additional civil penalties can be assessed pursuant to ECL 7-2503(1) because the violation concerning the bulkhead and retaining wall continued from May 22, 1992 to July 21, 1992.
  8. putting fill, the pool and the retaining structure less than 75 ft. from the tidal wetland violates the 75 ft. minimum setback requirement provided in 661.6(a)(1).
  9. The Respondent violated 661.6(a)(4) when he covered 30.6% of the adjacent area on the Site with impervious surfaces.

Recommendations

  1. The Commissioner should dismiss with prejudice the charged related to the plastic sheeting.
  2. The total civil penalty should be $110,000.
  3. The Commissioner should order the Respondent to remediate the Site, and direct the Respondent to provide a $100,000 Letter of Credit.

Attachments:

Appendix A: A List of the parties' Documents Supporting and Opposing the Motion for Summary Order.

Appendix B: Ruling on the Department's Motion for Summary Order, dated December 7, 1993.

Appendix C: Witnesses at the Hearing.

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, NY 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions