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Kroft, Stephen - Ruling, July 8, 2002

Ruling, July 8, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter

- of -

the Application for a tidal wetlands permit,
use and protection of water permit, and water quality certification 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 -

STEPHEN KROFT

Permit Application No. 1-4736-05614/00001

DECISION

DECISION OF THE COMMISSIONER

The attached Hearing Report ("Report") of Administrative Law Judge ("ALJ") Richard R. Wissler in the matter of the application of Stephen Kroft ("Applicant") for construction of a private dock facility in the Hamlet of Noyack, Town of Southampton, Suffolk County, is hereby adopted as the Decision in this matter, subject to my comments below.

The record demonstrates that the Applicant has not met his burden, as required by Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) (6 NYCRR 661.9(a) and 6 NYCRR 624.9(b)), to demonstrate that the proposed project complies with the standards for issuance of the necessary permits. Specifically, the proposed project does not meet the standards for issuance of a tidal wetlands permit (Environmental Conservation Law Article 25 and Part 661 of Title 6 of the NYCRR) nor for a protection of waters permit nor a water quality certification (Environmental Conservation Law Article 15 and 6 NYCRR Part 608).

As indicated by the hearing testimony, and as reported by the ALJ, the construction of a dock of the inordinate size and in the pristine location proposed by the Applicant will cause undue adverse impacts to the tidal wetlands in this area. Specifically, the record shows that there are numerous species of marine and wildlife inhabiting the area at or near the Applicant's property. These resources will be negatively impacted by the addition of the proposed dock structure, including specifically the Report's finding of a potential fifty percent decrease in the population of submerged aquatic vegetation ("SAV"), an important source of food and habitat for many of the species present. The Report also identifies fragmentation of the habitat, and impacts to recreational beach, boating and fishing and the natural shoreline as additional undue adverse impacts which would be caused by the proposed project. In light of the designation of the waters in this area of Noyack Bay as the highest water quality for recreational use and the importance of the Peconic Estuary, of which Noyack Bay is a part, as reflected in the federal National Estuary Program, such undue adverse impacts alone provide a sufficient basis to deny the proposed dock. As such, based upon this record, the ALJ's discussion with respect to the proliferation of other dock structures is de minimis.

Of additional significance in my determination that this permit should be denied is the fact that the Applicant did not demonstrate that the project is reasonable and necessary as required by 6 NYCRR 661.9(b)(iii), given the alternatives that are available to him. I concur with the ALJ that the significant potential impacts to the wetlands resulting from the project and as established by the record in this proceeding outweigh the stated purpose of relieving inconvenience to the Applicant, particularly where there are reasonable alternatives to the project.

Finally, I note that I do not adopt the ALJ's recommendation concerning the re-application by the Applicant for a dock to the extent it implies that the Department is compelled to approve a permit for a smaller dock, if applied for by the Applicant, based upon the existence of previous permits approved for the Applicant's property. The determination of whether or not to grant a permit must be governed by the site specific factors exiting at the time a permit application is made, including particularly the current state of the natural resources at the site. See In the Matter of the Application of Richard and Carol Leibner, Decision of the Commissioner, March 16, 2000; vacated on other grounds, Leibner v. NYSDEC, 291 A.D.2d 558 (2nd Dept. 2002).

Accordingly, the application for the requested permits is denied.

I have also reviewed the record with respect to the ruling rendered by the ALJ excluding the admission in evidence of permits for dock structures issued by the Department in areas other than Noyack Bay and concur that they lack sufficient relevance to the instant proceeding. Accordingly, I decline to open the record for their receipt in evidence.

For the New York State Department
of Environmental Conservation
/s/
By: Erin M. Crotty, Commissioner

Albany, New York
July 8, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter

- of -

the Application for a tidal wetlands permit, use and protection of water permit,
and water quality certification 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 -

STEPHEN KROFT

Permit Application No. 1-4736-05614/00001

HEARING REPORT

- by -

/s/
Richard R. Wissler
Administrative Law Judge

PROCEEDINGS

An application for permits from the New York State Department of Environmental Conservation (the "Department" or "DEC") was made by Stephen Kroft, 2211 Broadway, New York, New York 10024 (the "Applicant"), for construction of a private dock facility. The proposed project would be located at the Applicant's private residence at 3541 Noyack Road, Noyack, New York. The site is in the Hamlet of Noyack, Town of Southampton, Suffolk County, and is on the south shore of Noyack Bay, a part of the Peconic Estuary.

The project would require a Tidal Wetlands permit pursuant to Environmental Conservation Law (ECL) Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 661), a Protection of Waters permit pursuant to ECL Article 15, Title 5 and 6 NYCRR Part 608, and a Water Quality Certification pursuant to 6 NYCRR Section 608.9.

By letter dated March 9, 2001, Department Staff advised the Applicant that his permit application was denied because the dock as proposed did not meet the standards for permit issuance as articulated particularly in 6 NYCRR 661.9(b)(1)(i),(ii) and (iii). The proposed structure would have an undue impact on the present and potential values of the tidal wetlands at this site, Department Staff asserted. Moreover, according to Department Staff, the proposal is not reasonable and necessary taking into account reasonable alternatives such as the use of a mooring to anchor a boat.

Pursuant to ECL Article 8 (State Environmental Quality Review Act) and 6 NYCRR Part 617, the Department Staff determined that the proposed project is a Type II action, a residential dock, requiring no further review pursuant to those regulatory provisions.

The matter was referred to the Department's Office of Hearings and Mediation Services to schedule a hearing. A Notice of Hearing was published on June 27, 2001, in the Department's Environmental Notice Bulletin and in the Southampton Press on July 12, 001.

The hearing began on August 13, 2001, at the North Haven Village Hall, 335 Ferry Road, North Haven, New York, before Richard R. Wissler, Administrative Law Judge (ALJ). The hearing continued, before ALJ Wissler, on the following dates: August 15, October 3, 4 and 5, December 3, 4, 6, 19 and 20, 2001.

The Applicant was represented by Eric J. Bressler, Esq., of the law firm of Wickham, Wickham & Bressler, P.C., Mattituck, New York. The Department Staff was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York.

The Notice required that petitions to intervene be filed by August 3, 2001, and that written public comments on the proposed project be received by the ALJ prior to the hearing. The ALJ received 5 written comments and no petitions to intervene. The comments opposed the proposed project and came from local residents and an environmental advocacy organization called Group For The South Fork. Their comments expressed concerns over the size of the proposed project, the lack of other docks in the area except for one at a restaurant built before enactment of the DEC tidal wetlands regulations, the impact of the project on the ecology of the area and the interference the dock would pose to the public's use and enjoyment of this section of Noyack Bay. A petition containing 157 signatures of individuals opposed to the project was among the written comments received.

Pursuant to the Notice, the ALJ convened the public legislative hearing at 11:00 AM on Monday, August 13, 2001, at the aforementioned North Haven Village Hall. Fourteen persons spoke at the hearing, including the Applicant. Thomas Samuels commented that there are other docks on Noyack Bay which he has designed and built, that they have to be built substantially to withstand winter ice impacts and that they are not detrimental to either navigation or the environment. Robert Reiser, Mayor of the Village of North Haven, commented that he was there to observe the proceeding because North Haven was at that time assessing their current policies with respect to docks as part of the overall development of a harbor management plan for the Village. Jon Semlear, a Town of Southampton Trustee, expressed his personal concern that the granting of this permit could lead to a proliferation of other docks along this section of Noyack Bay. David Corwin, an engineer and dock designer, who also testified on behalf of the Applicant at the adjudicatory hearing, stressed the need to make a dock substantial enough to withstand winter ice impacts. Jean C. Land, a member of the South Fork Groundwater Task Force, stressed the need to protect the waters of the Peconic Estuary, and stated that the construction of this dock and others that would follow would be detrimental to this effort. Michael Leahy, the Applicant's next door neighbor, spoke in favor of the project and had no objections to it either environmentally or aesthetically. Steven Reiter said he had visited the site with the Applicant's consultant and found the area to have few clams. Julie Penny, a neighbor of the Applicant's also residing on Noyack Road, spoke in opposition to the dock and its potential impact to the environment and noted that the Applicant could use a mooring as other residents do; she also submitted a letter from she and her husband which was read into the record. Richard Jackson, a geologist who testified for the Applicant at the adjudicatory hearing, said the proposed dock would have no geological impact. Nancy Haynes, a manager of three marinas in the area, said that they are filled at this time with seasonal boats. Kevin McAllister, the Peconic Bay Keeper who testified for Department Staff at the adjudicatory hearing, said that this dock and the proliferation of others like it would have a cumulative negative impact on the ecology of Noyack Bay and the Peconic Estuary and would also interfere with the public's right to use and enjoy the Noyack Bay waterfront.

An Issues Conference was convened immediately following the public legislative hearing. Only the Department Staff and the Applicant participated as no one else had filed for party status. The reasons for the Department Staff s denial were discussed. The issues for adjudication were identified as follows:

  • Whether the proposed project meets the standards for issuance of a tidal wetlands permit specified in 6 NYCRR 661.9(b)(1)(i), (ii) and (iii);
  • Whether the proposed project meets the standards for issuance of a protection of waters permit specified in 6 NYCRR 608.8; and
  • Whether the proposed project meets the standards for issuance of a water quality certification pursuant to 6 NYCRR 608.9.

The parties agreed on the record that the above were the issues for adjudication and the ALJ so ruled. There was no appeal of this ruling.

The adjudicatory hearing then proceeded. The following witnesses testified on behalf of the Applicant: Stephen Kroft, the Applicant in this matter; Edward Burke, former owner of a property east of the Kroft site; Richard Jackson, David Corwin, John Cronin, Olive Perry-Weiss and Dr. Ronald W. Abrams, all of whom are environmental consultants retained directly or indirectly by the Applicant; Harry Reiter, a scalloper and clammer; and John Costello, a marine contractor.

The following witnesses testified on behalf of the Department Staff: Joan Croan, an area resident; George Stadnik, Marine Resource Specialist I, DEC Region 1; Kevin McAllister, Peconic Baykeeper; Charles T. McCaffrey, Jr., Coastal Resource Specialist with the New York State Department of State; and Pamela Lynch, Marine Biologist in the Marine Habitat Protection/Tidal Wetlands Unit, DEC Region 1.

The parties submitted briefs on or about February 1, 2002, and the Applicants submitted a reply brief on March 1, 2002. The hearing record closed on March 6, 2002, upon receipt of the Applicants' reply.

APPLICABLE REGULATORY PROVISIONS

6 NYCRR 661.9(b)(1) states, in pertinent part: "The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity:

(i) is 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 or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity;

(ii) is compatible with the public health and welfare;

(iii) is 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; and

(vi) complies with the use guidelines contained in section 661.5 of this Part."

6 NYCRR 661.5(b)(15) lists the construction of docks more than four feet in width as a generally compatible use in coastal shoals, bars and flats and littoral zone, for which a permit is required.

With regard to the standards for issuance of a protection of waters permit, 6 NYCRR 608.8 states: "The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that: (a) the proposal is reasonable and necessary; (b) the proposal will not endanger the health, safety or welfare of the people of the State of New York; and (c) the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment."

With regard to the standards for issuance of a water quality certification, 6 NYCRR 608.9 states, in pertinent part: "Any applicant for a Federal license or permit to conduct any activity, including but not limited to the construction or operation of facilities that may result in any discharge into navigable waters... must apply for and obtain a water quality certification from the department. The applicant must demonstrate compliance with... (6) State statutes, regulations and criteria otherwise applicable to such activities."

RULING

Introduction Into Evidence of DEC Issued Permits for Other Dock Structures

The Applicant sought to introduce into the record during the hearing evidence of, and copies of permits for, other dock structures issued in the past by the Department. Some of these dock structures were in Noyack Bay, but the great majority of these structures were located in other areas such as Shelter Island or the east side of the Village of North Haven, not on Noyack Bay. The Applicant argued that these structures and the sites where they were located were similar to the Applicant's proposal and its site. The Department Staff pointed out that the issue for this hearing was whether this proposal comported with the standards for permit issuance, regardless of any decision made on any other permit application. The ALJ ruled that the Applicant would be allowed to introduce documentation with respect to sites in Noyack Bay, but that documentation with respect to the other sites was not relevant to this hearing and would be excluded. Transcript, page 613, hereinafter, T and page number. The Applicant renewed its motion to introduce this documentation toward the end of the hearing and the motion was again denied by the ALJ. T, p.1878. In its closing brief and subsequent reply brief, the Applicant requested that if the Commissioner determines not to grant the instant application, she reverse the ALJ and direct that the record be reopened to receive the proffered evidence.

FINDINGS OF FACT

  1. The Applicant in this matter is Stephen Kroft, 2211 Broadway, New York, New York 10024. Mr. Kroft is the owner of a personal residence in the Hamlet of Noyack, Town of Southampton, New York, located at 3541 Noyack Road in Noyack which is the site of the proposed project. The specific Suffolk County Tax Map designation for the subject property is SCTM 900-6-1-47.8 & 47.9. Mr. Kroft acquired the property in 1998. The property is improved by a two story residence, a stable with attached apartment and a tennis court. The property is oriented northeast to southwest and along its northeast border fronts on Noyack Bay for approximately 355 feet.
  2. Noyack Bay is a body of water lying between Jessup's Neck to the west, Mill Creek and the Hamlet of Noyack to the south and the Village of North Haven to the east. At its widest part it is approximately 2.7 miles across, from Jessup's Neck to North Haven. From the northern tip of Jessup's Neck around the Bay to the northwestern corner of North Haven, the beach runs for about 7.5 miles. The entire length of Jessup's Neck, which is approximately 2 miles, is included in the Elizabeth A. Morton National Wildlife Refuge. From the base of Jessup's Neck in the south, it is about .9 of a mile in an easterly direction to the mouth of Mill Creek, a small body of water separate from the Bay and site of several commercial marinas. From the mouth of Mill Creek, the Bay's beach runs approximately 1 mile easterly to the site of the Applicant's property. From the Applicant's property, the beach runs in a southeasterly direction for about .3 of a mile and then in a northeasterly direction for approximately 1.4 miles until it reaches the southern boundary of the Village of North Haven. This latter stretch of 1.4 miles for the most part encompasses Long Beach, a municipal bathing beach facility. From the southern boundary of the Village of North Haven, the beach runs in a northwesterly direction approximately 1.9 miles to the northwesterly corner of the Village. Noyack Bay is part of the Peconic Estuary.
  3. From the Applicant's property to the tip of Jessup's Neck, a distance of about 4 miles, there are currently no commercial or residential docks. Indeed, docks are not encountered to the west of the Applicant's property until the Shinnecock Canal, some 8 or more miles away.
  4. Along the beach about 1500 feet to the east of the Applicant's property is a transient commercial dock belonging to a restaurant called the Salty Dog. This dock was built in the 1950's or 1960's and rebuilt in the 1970's prior to the enactment of 6 NYCRR Part 661 in 1977. From the mean high water line seaward, the Salty Dog dock is 89 feet in length and approximately 6 feet wide. It has no other extensions or floats and is of an open pile design without any wave curtains.
  5. From the Salty Dog, moving in a northerly direction along the Bay past Long Beach, no other docks are encountered until within the Village of North Haven, approximately 1.7 miles away.
  6. Between the Applicant's property and the Salty Dog there are 16 to 18 other parcels of land which front on Noyack Bay. To the west of the Applicant's site there are approximately 60 to 80 parcels of land which front on Noyack Bay. Each of these parcels could be the site of a dock structure.
  7. The placement of pilings during dock construction results in the destruction or displacement of the benthic community beneath the piling.
  8. Wave action, currents and the ebb and flow of the tide cause accretion of sand to the up current side and erosion of sand to the down current side of a piling. This affects littoral drift in Noyack Bay.
  9. Turbidity in the water column is exacerbated from the presence of a dock structure in Noyack Bay.
  10. Although a vessel may be moored at shallower depths, the effects of prop dredging are reduced when a boat is moored at water depths of four feet or more.
  11. While the use of chromated copper arsenate (CCA) wood in dock construction will result in the release of a certain level of these toxic compounds to the environment, the impact will not likely be significant enough to be harmful to aquatic life, according to Assessment of the Risks to Aquatic Life from the Use of Pressure Treated Wood in Water, a study published by the Department's Division of Fish Wildlife and Marine Resources, in March 2000. Moreover, other dock structures in Noyack Bay utilize CCA lumber.
  12. Vegetation on the Applicant's property between the residence and the shore's high water line is heavily dominated by Spartina patens (or high marsh grass). Seaward of the Spartina patens, between the mean high water and mean low water lines, is a white sand beach with shells and cobbles which has detritus consisting of various types of submerged aquatic vegetation washed up along the shoreline. Further seaward, low water is encountered at all times.
  13. At the border of the property immediately to the west of the site is a wetland which connects to Noyack Bay by a culvert and is daily flushed by the ebb and flow of the tide. This wetland provides fish and wildlife habitat for various juvenile species of fish and shore birds such as the least tern and piping plover both of which forage and nest along this entire section of Noyack Bay. The wetland also functions as a source of marine food production.
  14. Other water fowl are also indigenous, including various species of ducks, swans, blue heron, egrets and cormorants.
  15. The depth of the waters adjacent to the site are shallow, sloping to about 4 feet at a distance 150 feet seaward of the property along a line perpendicular to the shore, beginning at the mean low water line.
  16. In moving from the shore seaward, the bottom first consists of course sand and larger cobble for about 10 feet. At 20 feet from shore, somewhat smaller cobble, rocks and sand are encountered. At 30 feet from shore, detritus is encountered. At 40 feet, shells and smaller rocks appear and the sand becomes medium fine. At 50 feet, rocks and cobble decrease and fine sand, mud and silt begin to appear. The dark coloration of some of the sand indicates biological activity from the breakdown of plant material in the sediments. At 75 and 100 feet from shore, the bottom consists of sand and shells and no larger cobbles are encountered. At 150 feet, predominantly fine sediments are encountered and at 175 and 200 feet the bottom consists of fine sediments and mud. After 50 feet, the amount of dark coloration in the sand steadily increases indicating the presence of a viable benthic community.
  17. Five different varieties of submerged aquatic vegetation (SAV) thrive in the waters adjacent to the site. These include Codium (green fleece), Ulva (sea lettuce), Entromorpha (hollow green weed), as well as a species of red algae (Rhodophyta), and Fucus, a brown algae. These SAV varieties collectively cover from 10 to 30 percent of the Bay bottom adjacent to the site depending upon the time of year. This coverage is typical for the near shore waters of Noyack Bay.
  18. The various varieties of SAV constitute the very base of the food chain and all of them require sunlight for survival. A diminution of sunlight will cause a corresponding diminution in SAV growth and production, often as much as 50 percent or more. The complete deprivation of sunlight will result in the death of the particular SAV variety.
  19. In addition to forming the base of the food chain, SAV provides marine habitat and protection for various other organisms and species of fish, particularly juveniles.
  20. Numerous species of aquatic fauna inhabit the waters seaward of the site. These include three predominant species of fish, Menidia (silversides), Pomatomus (young of the year bluefish) and Fundulus (killiefish). Seventeen different varieties of invertebrates embracing three separate Phyla are also found here. Among Arthropoda, two shrimp, three crab and one barnacle variety were observed. Among Annelida, four polychaete worm species were observed, including tube worms and clam worms. Among Mollusca, five gastropods were observed including limpet, whelk, mud snail and two types of slipper shells, as well as one bivalve, the quahog clam (Mercenaria mercenaria).
  21. Residents and other visitors utilize this area of Noyack Bay for the enjoyment of various recreational activities including swimming, boating, walking the beach, shellfishing (especially clamming), and waterskiing. As to boating, in addition to power boats, various personal water craft are commonly used in the area including kayaks, sailboats and windsurfers. Many of these recreational activities occur in front of the site and, in fact, particularly in the case of walking the beach, utilize the beach immediately in front of the site.
  22. The Applicant proposes to construct a new dock at the site consisting of a 6 foot by 150 foot dock with a 6 foot by 40 foot "L" at the seaward end and a 6 foot by 10 foot return extension off the "L". Inside the first "L" and parallel to the dock would be a 32 inch by 12 foot ramp leading to a 6 foot by 24 foot float. The project would also entail the installation of 4 two pile dolphins located within the "Ls" and 3 five pile dolphins located on the seaward side of the "Ls". The shoreward end of the dock would begin at the mean low water mark and would be connected to the shore by a 6 foot by 36 foot ramp which would extend shoreward to just above mean high water. Thus, from the mean high water line, the proposed ramp and dock would extend out 186 feet into the waters of Noyack Bay.
  23. From the high water line, the proposed dock will cover a total of 1592 square feet, exclusive of the area occupied by the outboard pilings and dolphins, and will be the largest residential dock on Noyack Bay. Moreover, the dock would be capable of mooring several boats at one time, some of which could be of considerable length.
  24. The stated purpose of the project is to provide the Applicant with more convenient access to his 22 foot powerboat. Presently, the Applicant moors his boat to a buoy which he accesses by a dinghy. Utilization of the dinghy is an arduous task requiring an expenditure of time of 20 to 30 minutes each way to and from the mooring buoy. The dinghy, which is heavy, has to be dragged across the cobble of the Applicant's beach to be launched. Walking on the cobble while having to perform this task only adds to the challenge. Rowing the dinghy is strenuous and on the trip to and from the buoy, the small boat is subject to capsize. Upon arriving at the powerboat, the dinghy has to be made fast to it before the latter can be boarded. Getting aboard the larger boat is dangerous since one could slip and be injured by the propeller of the powerboat. Upon the return, the powerboat has to be moored to the buoy which is difficult. Rough seas or the wake from other boats only exacerbate the difficulty. The time wasted in this mooring exercise each time he wishes to use his powerboat has impacted the time he has to spend with his family. The Applicant asserts that there are no slips available in Mill Creek and that the drive to Sag Harbor a few miles away where slips might be available would be inconvenient. The proposed dock would enable the applicant to merely walk to his boat and embark and disembark from it conveniently and safely.
  25. Official tidal wetland inventory map numbers 722-540 and 724-540, prepared by the Department in 1974, show that the site includes tidal wetlands. Specifically, the wetlands on the site are labeled SM, denoting coastal shoals, bars and flats.
  26. The prior owner of the Applicant's site, Steven C. Greene, did obtain a permit from the Department to construct a dock at the site in 1986. This permit, Number 10-84-1184, was issued August 20, 1986, and ultimately expired on December 31, 1989. The proposed project was for a catwalk and dock. The catwalk was to be 4 feet wide and 25 feet long and would have run landward from the high water line. The proposed dock would have been 4 feet wide and 50 feet long and would have connected with the catwalk at the high water line before running seaward its 50 foot length. Accordingly, from the high water mark, this structure would have extended out over the water only 50 feet and covered an area of 200 square feet. This project was never undertaken, however.
  27. Beginning four residential properties to the east of the Applicant's site, are the contiguous properties of Edward Barry and Edward Burke, Jr., at 3625 and 3633 Noyack Road, respectively. Their properties are separated from the beach along their entire length by a bulkhead. Pursuant to a joint application, the Department granted them a permit, Number 1-4736-02553/00001, on March 11, 1996, to construct an open pile dock, ramp and float along their common property line. The project would have entailed construction of a 4 foot wide by 50 foot long fixed pier running seaward from the bulkhead. According to the plans submitted, the high water line is approximately ten feet seaward of the bulkhead. At the end of this 50 foot pier would have been a 3 foot wide by 16 foot long ramp which would have connected to two 6 foot by 16 foot floats attached end to end. The project was never constructed, however. The aforementioned permit expired on March 11, 1999, and has not been renewed by the Department. Were it to have been built, however, from the high water line, the project would have extended seaward some 88 feet and covered 400 square feet of the surface of Noyack Bay.
  28. About 1500 feet east of the Applicant's property is the dock of the Salty Dog restaurant. It is a commercial structure providing transient mooring for its patrons. As noted in Finding Number 4, above, this dock was built in the 1950's or 1960's and rebuilt in the 1970's prior to the enactment of 6 NYCRR Part 661 in 1977. From the apparent mean high water line seaward, the Salty Dog dock is 89 feet in length and approximately 6 feet wide. It has no other extensions or floats. Accordingly, from the mean high line this structure covers 534 square feet of the waters of Noyack Bay.
  29. Beginning approximately one and a half miles northeast of the site across the waters of Noyack Bay and running northwesterly along the beach for about one mile, in the Village of North Haven, are a series of six docks, five private residential docks and one community dock constructed as part of West Banks, a residential community development. Some of these docks were constructed prior to the enactment of 6 NYCRR Part 661 in 1977. Starting from the south and moving northwesterly along the beachfront, the first four of the five docks are built on contiguous residential parcels. They are located respectively at the Tweed, Palmieri, Malloy and Morrell residences. All four of these docks where either built or refurbished pursuant to a permit issued by the Department. All that the record reveals about the fifth residential dock is that it is north of the Morrell dock but south of the West Banks dock and that it is a straight dock structure 125 feet long. The Department has also issued a permit for a dock at the Ernst residence which is south of and contiguous with the Tweed residence. The Ernst dock has not yet been constructed. Findings 30 through 35, following herein, provide a description of the Ernst proposal and the Tweed, Palmieri, Malloy, Morrell and West Banks docks.
  30. Permit Number 1-4736-05339/00001 was issued by the Department on June 12, 2000, to Dallas Ernst. The proposed project entails construction of a 6 foot by 40 foot ramp running seaward from the high water line where it connects to a 6 foot by 100 foot dock, at the end of which it joins a 6 foot by 32 foot "L". Inside the "L" is a 4 foot by 8 foot ramp running parallel to the dock and leading to a 4 foot by 24 foot lower platform. This structure, if built, would cover 1160 square feet of the surface of the waters of Noyack Bay. It would also be of a size similar to the docks of neighboring properties. Moreover, the proposed structure would be built along a section of the Noyack Bay shoreline that has already been fragmented by other docks and suffered irreparable degradation and damage to the immediate marine habitat.
  31. On April 25, 1989, the Department issued Permit Number 10-88-2169 to Gary Tweed for a residential dock to be repaired or reconstructed and added to in connection with the construction of a single family house and other improvements on his property. As to the dock, the project built included a 6 foot by 96 foot dock starting at the mean high water line and extending seaward perpendicular to the shore. At the end of the dock is a 6 foot by 32 foot extension angled at 45 degrees to the right, out into the water. The extension is joined by another 6 foot by 32 foot extension angled to the right at 45 degrees and thus perpendicular to the initial 96 foot dock section. Within the "L" thus created and parallel to this latter extension is a 5 foot by 32 foot platform. This structure, as built, when measured from the high water line, covers 1120 square feet of the waters of Noyack Bay.
  32. On May 11, 1999, the Department issued Permit Number 1-4736-03817/00005 to Victor Palmieri authorizing the replacement and modification of a preexisting residential dock at his property. Beginning at the high water line and moving seaward, the construction resulted in the completion of a 6 foot by 40 foot ramp leading to a 6 foot by 80 foot dock with an 8 foot by 40 foot "L" extension angled to the end of this dock. Inside this angled "L" and parallel to it is a 6 foot by 24 foot lower platform. Dolphins and a boat lift were also installed. The completed structure covers 1184 square feet of the waters of Noyack Bay.
  33. On June 12, 1985, the Department issued Permit Number 10-85-0584 to Patrick E. Malloy to reconstruct a 6 foot wide by 40 foot long section of an existing dock 180 feet in length, as well as a 5 foot by 20 foot lower platform which parallels the dock. This entire structure covers 1180 square feet of the waters of Noyack Bay.
  34. On December 19, 1986, the Department issued Permit Number 10-86-1373 to George Morrell authorizing the extension of an existing 8 foot by 160 foot dock by the addition of an 8 foot by 32 foot "L" at the end thereof. This entire structure covers 1536 square feet.
  35. On June 3, 1992, the Department issued Permit Number 10-87-0121 to NFB Development Corp. for construction of a community dock at West Banks, a residential community in the Village of North Haven. From the high water line, the project entailed construction of a dock 4 feet wide by 125 feet long with a 4 foot by 25 foot "L" extension at the seaward end. The project thus built covers 600 square feet of the waters of Noyack Bay.
  36. Noyack Bay has been included in numerous recent studies recognizing and focusing on the unique marine habitat embraced by the Peconic Estuary. These studies include Commercial Finfish And Crustacean Landings From Peconic And Gardiners Bay, New York, 1980-1992, published by the Department's Division of Marine Resources in 1995; An Assessment Of Shellfish Resources In The Deep Water Areas Of The Peconic Estuary, jointly prepared by the Marine Sciences Research Center of S.U.N.Y. Stony Brook and the Division of Environmental Protection of the Town of Brookhaven in 1997; An Assessment Of Shellfish Resources In The Tributaries And Embayments Of The Peconic Estuary, issued by the Cornell Cooperative Extension of Suffolk County Marine Program in 1998; and Species Composition, Seasonal Occurrence and Relative Abundance of Finfish and Macroinvertebrates Taken by Small-Mesh Otter Trawl in Peconic Bay, New York, published by the Department's Division of Fish, Wildlife and Marine Resources in 1998.
  37. The study of Noyack Bay has also been included as one of the components of the Peconic Estuary Program which is part of the National Estuary Program administered by the U.S. Environmental Protection Agency (EPA). The Peconic Estuary is one of only 28 estuaries in the United States included in the EPA program. Of particular importance in this regard is a study of submerged aquatic vegetation (SAV) prepared by Cashin Associates, P.C., in 1996, for the Suffolk County Department of Health Services, the local agency with coordination and oversight responsibility for the Peconic Estuary component of the National Estuary Program. The study, entitled Peconic Estuary Program Final Submerged Aquatic Vegetation Study, asserts that SAV beds constitute one of the most important habitats in the Peconic Estuary providing various habitat functions essential to the Estuary's biota. The study concludes that:
    • SAV beds are responsible for a large portion of the primary production that forms the base of the Estuary's food chain.
    • SAV provides nursery areas, and shelter and protection for various species of finfish and invertebrates, many of which are of recreational or commercial importance.
    • SAV provides surfaces for the attachment of various epiphytes and epifauna, which increases species diversity and abundance compared to areas that lack vegetation.
    • All SAV is involved in nutrient cycling, since these plants absorb nutrients (e.g., nitrogen and phosphorus) from the surrounding environment, and re-release those nutrients through organic decay.
    • Rooted SAV stabilizes bottom sediments, even through the enormous stresses of hurricanes and northeast storms.
    • SAV slows currents and waves in the near-bottom zone and, thereby, promotes sedimentation of particles from the water column, inhibits resuspension of previously settled particles, and moderates water column turbidity.

    Pages 8-9, Peconic Estuary Program Final Submerged Aquatic Vegetation Study.

  38. An objective of the aforementioned Peconic Estuary Program was the development of a comprehensive management plan for the Estuary. In 2001, this effort resulted in the issuance of the Comprehensive Conservation and Management Plan (CCMP) for the Peconic Estuary. With issuance of this exhaustive document, the Peconic Estuary Management Conference, which was responsible for its development, made the following declarations and pledge:

    "The Peconic Estuary is an important natural resource that provides incomparable beauty and significant recreational and commercial benefits;

    The Peconic Estuary's living resources, water quality, and aesthetic character have suffered from development and other human uses; and

    Restoration and protection of the Peconic Estuary's environmental quality require focused management by a partnership of Federal, State, and local governments, affected industries, academia, and the public.

    We therefore pledge to restore and protect the environmental quality of the Peconic Estuary through the preparation and implementation of the Comprehensive Conservation and Management Plan." CCMP, p. 1-1.

  39. Chapter Four of the CCMP entitled, Habitat and Living Resources Management Plan, enumerates eight Objectives for this latter Plan, including, inter alia, the following:

    Objective 1) Preserve and enhance the integrity of the ecosystems and natural resources present in the study area so that optimal quantity and quality of fish and wildlife habitat and diversity of species can be assured and conservation and wise management of the consumable, renewable natural resources of the estuary are promoted and enhanced.

    Objective 3) Protect and enhance the ecosystems and the diversity of ecological communities and habitat complexes throughout the system, particularly tidal wetlands, eelgrass meadows, and beaches and dunes by preventing or minimizing loss, degradation, and fragmentation and by maintaining and restoring natural processes essential to the health of the estuary and its watershed.

    Objective 4) Restore degraded habitats to maintain or increase native species and community diversity, provide connectivity of natural areas, and expand existing natural areas.

    Objective 6) Protect and enhance species which are endangered, threatened, or of special concern throughout the system by mitigating stresses to these species and ensuring essential habitats crucial for their survival.

    Objective 7) Promote coordination and cooperation among Federal, state, and local governments and stakeholders to maximize protection, stewardship, and restoration of the Peconic Estuary.

    Objective 8) Develop and carry out an estuary-wide research, monitoring, and assessment program to guide and evaluate management decisions concerning the estuary and to ensure management and policy decisions are based on the best available information. CCMP, p. 4-1.

  40. 40) To achieve these six Objectives, certain specific actions called Habitat and Living Resources Actions (HLRs) are recommended. Of these Actions, HLR-2 seeks to "Manage Shoreline Stabilization, Docks, Piers, and Flow Restriction Structures to Reduce or Prevent Additional Hardening and Encourage Restoration of Hardened Shorelines to a Natural State." CCMP, p. 4-30.
    • In its discussion of HLR-2, with respect to shoreline hardening structures such as bulkheads, the CCMP recommends that there "ideally" be no net increase in such structures and that various land use planning regulations and financial incentives be explored to encourage landowners to remove such structures. CCMP, pp. 4-30 and 4-31.
    • With respect to docks, the HLR-2 discussion, while not specifically asserting that no further docks be constructed, contains the following cautionary language: "The cumulative impacts of docks will eventually contribute to the degradation of local water quality and natural communities through fragmentation of habitats, shading of submerged aquatic vegetation and other potential impacts." CCMP, p. 4-31. Continuing, the CCMP concludes, "It is not clear just how many of these structures exist in the Peconics and exactly where they are located. A concentrated effort to identify all of them and to assess the impacts that they have had and are having on adjacent natural communities will help in the development of recommendations on how to manage them in the future." Id., at 4-31 and 4-32.
    • In order to be approved, the Applicant's project must be found by the New York State Department of State to be consistent with the State Coastal Policies of the New York Coastal Management Program (CMP). Policies 20 and 44 of the CMP provide as follows:

      Policy 20) Access to the publicly owned foreshore and to lands immediately adjacent to the foreshore or the water's edge that are publicly owned shall be provided and it shall be provided in a manner compatible with adjoining uses.

      Policy 44) Preserve and protect tidal and freshwater wetlands and preserve the benefits derived from these areas.

    • The publicly owned foreshore, as pertinent to this matter and as contemplated in CMP Policy 20, is the shoreline of Noyack Bay seaward of the mean high water mark.
    • The proposed dock structure will cover 1592 square feet of the Noyack Bay surface resulting in the shading of submerged aquatic vegetation (SAV) beneath the structure to an equivalent extent. Moreover, the total amount of shading will be somewhat increased above this level by the shading caused by the permanent outboard pilings and dolphins as well as the presence of boats moored at the structure which will vary with the time of day, the length of time, and the size and number of vessels moored. Although the SAV will receive the benefit of some ambient light beneath the structure, a permanent diminution of sunlight beneath the structure will occur. This will result in the diminution of SAV growth beneath the structure by as much as 50 percent. Moreover, this permanent impact would be imposed on an area of Noyack Bay which presently only has SAV over 10 to 30 percent of the bottom.
    • The granting of a permit for a dock in this predominantly unbroken shoreline could lead to a proliferation of docks at other nearby sites leading to a permanent fragmentation and degradation of the shoreline and the tidal wetland ecosystem in the vicinity of the site.
    • The proposed structure would extend from above the mean high water line seaward obstructing the public's right of way along the beach in front of the Applicant's property.
    • Although perhaps unavailable at the time of this hearing and perhaps subject to a waiting list at some locations, in-the-water boat slips are available at nearby marinas in Mill Creek, Parson Creek and Sag Harbor. Moreover, nearby marina facilities also provide out-of-the-water rack storage for recreational boats, which is available to the Applicant.
    • The Applicant currently utilizes a mooring buoy to anchor his 22 foot power boat. This buoy is located in water that is 7 feet in depth as measured from mean low water. The bottom at the mooring buoy site is sand and cobbles. The tide ranges 2 ½ to 3 feet at the site of the mooring buoy. Approximately 29 feet of chain connect the anchor of the mooring to its buoy. Depending upon the depth of the water, this can result in 20 to 25 feet of chain dragging along and scouring the bottom.
    • At present, there are about 25 mooring buoys utilized in Noyack Bay.
    • With the construction of the Ernst dock there will be a total of six private residential docks in all of Noyack Bay, all of which will be located in the Village of North Haven more than a mile and a half across the Bay from the Applicant's site.

DISCUSSION

Undue Adverse Impacts

Section 661.9(b)(1)(i) of 6 NYCRR directs the Department, in considering a tidal wetlands permit application, to make a determination that the proposed activity "is 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 or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity." This analysis must begin with a consideration of the ecosystem currently present at the site.

As is clear from the record, numerous flora and fauna presently thrive at and near the Applicant's property. The area upland of the shore, heavily dominated by Spartina patens, as well as a wetland immediately to the west which is daily flushed by the ebb and flow of the tide, provide fish and wildlife habitat for various species of juvenile fish and a nesting and foraging area for shore birds, including the piping plover and the least tern. Other water fowl are also found at the site, including various species of ducks, swans, blue heron, egrets and cormorants.

Numerous species of aquatic fauna inhabit the waters seaward of the site. These include three predominant species of fish, Menidia (silversides), Pomatomus (young of the year bluefish) and Fundulus (killiefish). Different varieties of invertebrates embracing three separate Phyla are also found here. Among Arthropoda, shrimp, crab and barnacle are observed. Among Annelida, polychaete worm species are found, including tube worms and clam worms. Among Mollusca, various gastropods thrive here, including limpet, whelk, mud snail, slipper shells and the bivalve quahog clam (Mercenaria mercenaria).

Five different varieties of submerged aquatic vegetation (SAV) thrive in the waters adjacent to the site. These include Codium (green fleece), Ulva (sea lettuce), Entromorpha (hollow green weed), as well as a species of red algae (Rhodophyta), and Fucus, a brown algae. Depending upon the time of year, these SAV varieties collectively cover from 10 to 30 percent of the Bay bottom adjacent to the site.

These various varieties of SAV are extremely important to the ecosystem at the site and to the various species that inhabit and feed at the site. Indeed, the SAV constitute the very base of the food chain, providing food for microorganisms which become food for other invertebrate and vertebrate species which, in turn, become a food source for other species higher on the food chain, including shore birds, water fowl and, in fact, humans. Moreover, the SAV provide shelter and protection for juvenile fish and other organisms, thus enhancing the survival of each of these species. Accordingly, any adverse impact to the SAV will have a corresponding adverse impact on each and every organism that depends on the SAV for food or protection. With respect to the Applicant's site, the primary adverse impacts to the SAV are the effects of shading caused by the proposed project, as well as the potential for the proliferation of similar dock structures and the fragmentation of the tidal marine habitat caused by such docks.

Importance of Submerged Aquatic Vegetation (SAV) and the Effects of Shading

As the record makes clear, in this case SAV is of great importance to the marine ecosystem at the Applicant's site. This conclusion is supported not only by the recent studies of the Peconic Estuary generally, noted above, but by the on-site inspection and verification of five SAV species. As Pamela Lynch, Department Staff Marine Biologist, pointed out, these plant species represent "a lush and diverse plant community. Each plant is the food source and a habitat for different invertebrate and fish, not just one species but many, showing that there is a food web. Many different organisms feeding on many different plants living in and among each other. Any disturbance to this area is going to have a significant impact to the marine food production and the community system there." T, pp. 1368-1369. Although the Applicant presented evidence that the SAV at or near the docks located in North Haven was similar to that found at the Applicant's site, the significant importance of SAV to the benthic community at the Applicant's site was not refuted.

With respect to shading, Department Staff Marine Biologist George Stadnik asserted that the proposed dock structure would limit the amount of sunlight penetration and, accordingly, limit the amount of SAV beneath the dock. T, p. 1039. If the SAV cover at the Applicant's site is 10 percent, a potential for no SAV cover beneath the dock exists. Id. Mr. Stadnik pointed out that while the precise percentages could not be determined unless the proposed structure was actually built, so that the effects of height above the water and alignment of the dock with respect to the daily passage of the sun could be directly observed, in his opinion, SAV growth beneath the proposed structure would be reduced by 50 percent. T, pp. 1039-1042. Department Staff Marine Biologist Pamela Lynch essentially concurred with Mr. Stadnik, and opined that for an area two feet wide directly beneath the centerline of the 6 foot wide dock, SAV growth would be reduced by 50 percent and by 25 percent in the two foot wide area on either side of the medial two foot area. T, pp. 1553-1586. The Applicant's expert, Dr. Ronald W. Abrams, sought to refute this position by opining that the SAV in this area will get adequate sunlight throughout the day including ambient light beneath the proposed dock. T, pp. 1780-1781. Although not indicating the precise elevation above the water, Dr. Abrams asserted that if the dock is built to a certain height, the effect of shading is negligible. T, p. 1780. Moreover, he argued, that even if the proposed dock completely shades 1600 square feet, this would be an insignificant impact when compared to the ecology of the entire Bay. T, p. 1779.

While Dr. Abrams' arguments are cogent, they do not refute the fact that dock structures like the one proposed do, in fact, shade SAV and impact their ability to thrive. Moreover, this impact would only be exacerbated by the outboard dolphins and pilings proposed, as well as the potential mooring of multiple vessels at the site. Given the importance of SAV to the marine ecosystem at this site and the fact that, at some seasons of the year, SAV bottom coverage at the site is only 10 percent, shading from the proposed dock structure will result in an undue adverse impact on the present and potential value of the tidal wetlands at the site. Moreover, the analysis required by 6 NYCRR 661.9(b)(1)(i) is site specific. In the Matter of the Application of Richard and Carol Leibner, Decision of the Commissioner, March 16, 2000; vacated on other grounds, Leibner v. NYSDEC, 291 A.D.2d 558, 738 N.Y.S.2d 65, 2002 N.Y. Slip Op. 01490 (A.D.2d Feb. 25, 2002). The fact that the size of the Applicant's project is minuscule when compared to the entire area of Noyack Bay is irrelevant and does not negate the existence of important tidal wetland functions at the site essential to the survival of the marine community located there.

Potential for the Proliferation of Other Dock Structures and Fragmentation of the Shoreline

The standards for permit issuance articulated in 6 NYCRR 661.9(b)(1)(i) require that the Department determine that the proposed activity will not have an undue adverse impact, not only on the present value of a particular tidal wetland, but on potential value as well. Accordingly, it is appropriate for the Department to consider the impact of future projects similar to that proposed by an applicant and the cumulative impact these projects could have on the subject tidal wetlands. Failure to engage in this predictive analysis would be to ignore the fundamental purpose of the State's tidal wetlands laws and regulations which is to preserve and protect tidal wetlands and to prevent their despoliation and destruction. Moreover, such an approach would disregard the dictates of ECL Section 3-0301(1)(b), which requires the Department to consider the cumulative impacts of a project in connection with permit application review.

Among the factors the Department considers in this regard is the presence or absence of other dock structures in the area where a new structure of this type is proposed. Where the shoreline and indigenous tidal wetlands have already been subject to degradation and despoliation by other docks or other shoreline hardening structures, the Department may rely upon this as one determining factor in granting a permit for a new dock structure. As the record shows, this is indeed the case with the Ernst permit application. T, pp. 1404-1405. This dock is proposed to be constructed contiguous to five other pre-existing residential docks in the Village of North Haven, a mile and a half across Noyack Bay from the Applicant's property. As a result of these pre-existing structures, the tidal wetlands in that immediate area are already fragmented and disturbed. The addition of the Ernst dock in this area would not result in an undue adverse impact.

Department Staff expressed concern that granting the instant application could result in the proliferation of docks in the area of the Applicant's property where currently none exist except for the commercial Salty Dog dock. This dock was built prior to the enactment of 6 NYCRR Part 661 and is some 1500 feet eastward of the proposed site. T, pp. 854 and 1441. This concern is not unfounded. While the dock structures in North Haven are not relevant to the siting of a dock structure on this stretch of the Noyack Bay shoreline, the fact that other dock structure permits have been issued in the past by the Department for this site as well as a neighboring site are relevant, namely, the Greene and Barry/Burke applications. Neither of these proposed dock structures was ever built, and the permits for them have expired. But the fact that these permits were issued in the past is indicative of a potentially ongoing interest in the construction of residential docks in an expanse of the Noyack Bay shoreline that has heretofore remained untouched by such structures.

Moreover, it is clear that since these permits were issued, a heightened sensitivity to the importance of the marine ecosystem in the Peconic Estuary has occurred, as evidenced, for example, by the promulgation of the CCMP in 2001. As this document emphasizes, the cumulative environmental impacts of the proliferation of docks cannot be ignored. The CCMP's assertion at page 4-31 bears repeating here: "The cumulative impacts of docks will eventually contribute to the degradation of local water quality and natural communities through fragmentation of habitats, shading of submerged aquatic vegetation and other potential impacts." While the CCMP does not have the force of law, it does express current thinking with respect to dock structures in the Peconic Estuary and is therefore a reasonable touchstone to be considered when determining whether a proposed activity comports with the policy of the State's tidal wetland laws and regulations which is to preserve and protect tidal wetlands and to prevent their despoliation and destruction.

With respect to fragmentation, Department Staff offered testimony that a dock at the Applicant's site would fragment the benthic habitat, especially impacting sessile organisms. T, p. 1673. The physical presence of the dock would also disrupt littoral drift along this section of the Noyack Bay shoreline. T, p. 1672. Impacts from the fragmentation of the habitat by one dock would be proportionately greater than that resulting from the addition of another dock in an area where other docks already existed because, in the latter instance, fragmentation of the habitat and degradation of the habitat would have already occurred. This is why the cumulative impacts of dock structures is so important. T, pp. 1683-1684. Although he disagreed with the Department Staff's view of fragmentation stating that it should be viewed as a process, the Applicant's expert, Dr. Ronald W. Abrams, while asserting that the Applicant's project would not have a significant adverse environmental impact, agreed that it was reasonable for the Department to consider the future cumulative impacts of docks, provided the consideration was based upon appropriate scientific studies. T, pp. 1788, 1790 and 1863-1864. Although stating that in his understanding such studies did not exist, he agreed that from a scientific standpoint there is a point at which, environmentally, the proliferation of docks becomes impermissibly excessive. T, p. 1864.

The record in this matter indicates that there are about 18 residential sites east of the Applicant's property that could each be the site of a residential dock structure. To the west, there are perhaps 60 or more potential sites for residential dock structures. The Applicant's site was, in fact, the site for a dock permit issued in 1986 authorizing a residential dock structure 4 feet wide and 50 feet long covering a total of 200 square feet of the waters of Noyack Bay. This dock was never constructed. A nearby neighbor to the east was granted a permit in 1996 to build a residential dock structure consisting of a pier and floats that would have covered 400 square feet of the waters of Noyack Bay. This dock was never constructed. The only dock that exists on the Applicant's section of the Noyack Bay shoreline is a commercial transient dock about 1500 feet to the east which covers 534 square feet of the waters of Noyack Bay and was constructed before the enactment of the State's tidal wetland laws and regulations. The Applicant's proposed dock would be the first residential dock built on an otherwise unobstructed stretch of shoreline running from the Shinnecock Canal 8 miles to the west to the Village of North Haven 2 miles to the north and east. Based upon these facts, Department Staff's consideration of the possible proliferation of docks and the fragmentation of the marine habitat occasioned by the docks is eminently reasonable.

Interference With Public Access

As the record indicates, the public currently enjoys unobstructed use of the foreshore at the Applicant's property. Recreational activities in this area which specifically involve the foreshore include shellfishing, swimming and walking. The proposed project would interfere with this public use and enjoyment, because of the magnitude of its size and the fact that it would obstruct the foreshore to above the mean high water mark. Testifying on behalf of Department Staff, Charles McCaffrey, a Coastal Resource Specialist with the New York State Department of State and responsible for ensuring that proposed waterfront projects are consistent with the articulated Policies of the New York Coastal Management Program (CMP), pointed out that CMP Policy 20 (see, Finding of Fact 43, above), embodies the Public Trust Doctrine and essentially provides "that the public's right to the use of the foreshore should be protected and increased consistent with the nature of surrounding land use." T, p. 1274. Based upon his review of the Applicant's proposal, its location on Noyack Bay, the fact that there are no other docks in the immediate area and the public uses existent in the area, McCaffrey opined "that given the nature of the public uses in this area, the alternatives that would be available to the applicant to exercise his littoral rights, that a project other than as proposed would be more consistent with our obligations under Policy 20 of the Public Trust Doctrine to protect [the] public's use of this area." T, pp. 1275-1276. During cross examination, Mr. McCaffrey pointed out that the CMP consistency analysis necessary to a particular project would depend on a consideration of the facts unique to that site. T, p. 1289. He did concede that the public's right to walk the foreshore at the site could be maintained by the installation of stairs going up and over the dock as well as permission from the Applicant to the public to walk around the dock landward of the structure's end. T, p. 1291. However, expressing concern over the total square footage of the proposed project, Mr. McCaffrey asserted that the Department of State in its review would seek to ensure that the design of any proposed residential dock be of the minimum size necessary to afford the landowner his or her riparian rights while at the same time minimizing the effect on the public's use. T, p. 1303.

While a viable solution may exist to address the public's right to walk the beach in front of the Applicant's property, it is apparent from this record that the sheer size of the proposed project will still permanently impair public's heretofore unobstructed access to this open expanse of beach along the waters of Noyack Bay. The proposed dock will be an obstacle to swimmers, boaters and shellfishers. While the CMP consistency review is solely within the purview of the Department of State, it would appear that the design parameters of the project far exceed the minimum intrusion upon the public's right of access contemplated by CMP Policy 20.

Reasonableness of and Necessity for the Proposed Project

From the high water line, the Applicant's proposed dock structure would extend 186 feet into the waters of Noyack Bay and cover 1592 square feet of the surface of the Bay and would be the largest residential dock structure in all of Noyack Bay. In fact, the total area of the Bay impacted will be greater than 1592 square feet when the presence of the proposed multiple outboard pilings and dolphins and the potential to moor several boats at the dock at one time are taken into account.

The residential docks located in North Haven are not entirely relevant to the analysis here. First, they are remote, being all a mile and a half away and more from the subject site and all located within the Village of North Haven. Second, for the most part they extend from contiguous properties and some of them were constructed prior to the enactment of the tidal wetlands regulations in 1977. Third, and relevant to this discussion, an irreparable degradation of the marine habitat in this area has already occurred, due, in part, to the proliferation of these docks.

Except for the Salty Dog dock 1500 feet away, the shoreline of Noyack Bay is unobstructed by residential dock structures for approximately 6 miles from the northerly tip of Jessup's Neck to the proposed Ernst dock in the Village of North Haven. The Salty Dog dock is a transient commercial dock which extends from the high water line 89 feet into the waters of Noyack Bay and covers a total area of 534 square feet. This commercial structure is only one third the size of the structure proposed by the Applicant.

A 1986 permit issued by the Department to the site's prior owner, Stephen C. Greene, to construct a residential dock at the Applicant's site, proposed a structure that would have extended from the high water line 50 feet into the waters of Noyack Bay and would have covered an area of only 200 square feet. This structure, if built, would have been one eighth the size of that proposed by the Applicant.

A 1996 permit issued by the Department to contiguous neighbors four properties to the east of the Applicant's property, Edward Barry and Edward Burke, Jr., proposed a shared residential dock structure that would have extended from the high water mark 88 feet into the waters of Noyack Bay, covering a total area of 400 square feet. This structure, if built, would have been only one fourth the size of that proposed by the Applicant.

The Applicant owns a single 22 foot powerboat and, based upon the record, needs the dock to provide convenient access to this vessel. Mooring buoys are used exclusively to moor recreational boats in this area of Noyack Bay. There are no other residential dock structures in this area of Noyack Bay. Commercial marinas are available to the Applicant providing both in-the-water boat slips and out-of-the-water rack storage.

Based upon this record, the Applicant's proposal is simply not reasonable and necessary in light of reasonable alternatives available to him.

CONCLUSIONS

  1. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(i) in that it will have an undue adverse impact on the present and potential value of the tidal wetland at the site for marine food production, wildlife habitat, flood and hurricane storm control, cleansing ecosystems, absorption of silt and organic material, recreation and open space appreciation. In particular, shading of submerged aquatic vegetation (SAV) by this 1592 square foot structure will cause a significant diminution in the ability of these species to survive. SAV forms the base of the food chain and is essential to the survival and health of the marine ecosystem at the site. The bottom coverage of SAV here is already sparse, as little as 10 percent during certain seasons of the year. Shading by the proposed dock will, therefore, have an undue adverse impact on the aforementioned tidal wetland values. Moreover, the proposed dock will have an undue adverse impact on recreation in the area of the site, obstructing public access along the beachfront, and diminishing shellfishing, swimming, and recreational boating opportunities. Finally, the potential value of the wetlands at and adjacent to the site would be unduly and adversely impacted through the proliferation of similar residential dock structures which could result should a permit for the structure be issued.
  2. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(ii) in that it is not compatible with the public health and welfare. At present, the public enjoys unobstructed access to nearly 6 miles of beachfront in this area of Noyack Bay. The area is currently used by the public for walking, swimming, shellfishing and recreational boating. The Applicant's proposal would significantly diminish this fundamental right of access.
  3. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(iii) in that it is not reasonable and necessary, taking into account the reasonable alternatives that exist to the proposed project. These alternatives include the continued utilization of a mooring buoy, as is predominant in this section of Noyack Bay; the utilization of a nearby commercial marina; or proposal of a residential dock structure of much smaller size and commensurate with the Applicant's expressed need.
  4. With regard to the standards for a protection of waters permit pursuant to 6 NYCRR 608.8, as stated above, the project as proposed is not reasonable and necessary and therefore does not comply with Section 608.8(a). The project as proposed will cause unnecessary damage to the natural resources of the state, specifically SAV and the aquatic environment and therefore does not comport with Section 608.8(c).
  5. With regard to the standards for granting water quality certification under 6 NYCRR 608.9, since the proposal does not meet the tidal wetlands and protection of waters permit requirements, it fails to be in compliance with state statutes, regulations and criteria otherwise applicable to activities needing water quality certification as required by Section 608.9(a)(6). Accordingly, the certification required pursuant to 6 NYCRR 608.9 cannot be made.

RECOMMENDATIONS

I recommend that the application be denied without prejudice to pursue a new application for a residential dock structure similar in design and size to the Greene and Barry/Burke permits previously issued by the Department.

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