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Olympic Regional Development Authority - Decision, June 28, 2002

Decision, June 28, 2002

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

In the Matter

-of-

Proposed Suspension of the Water Quality Certification of

OLYMPIC REGIONAL DEVELOPMENT AUTHORITY

DEC Permit No. 5-1554-00013/00007

DECISION

June 28, 2002

DECISION OF THE COMMISSIONER

The attached ruling and hearing report of Administrative Law Judge Maria E. Villa in the matter of the proposed suspension of the water quality certification of the Olympic Regional Development Authority (the "Authority") is hereby adopted as the Decision in this matter.

As indicated in the ruling and hearing report, the denial of the request for suspension of the permit is not subject to public notice, comment, or hearing. Moreover, the arguments advanced by the parties support the ALJ's conclusion that the request to suspend the permit is untimely, and would result in prejudice to the Authority.

Accordingly, the motion to suspend the water quality certification is denied.

For the New York State Department of Environmental Conservation

/s/
by: Erin M. Crotty
Commissioner

Albany, New York
June 28th, 2002

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Proposed Suspension of the Water Quality Certification of

OLYMPIC REGIONAL DEVELOPMENT AUTHORITY,

DEC Permit No. 5-1554-00013/00007

RULING

ON MOTION

TO SUSPEND

WATER QUALITY CERTIFICATION

AND HEARING REPORT

PROCEEDINGS

New York Rivers United ("NYRU") seeks suspension of the water quality certification issued to the Olympic Regional Development Authority ("ORDA"), in connection with ORDA's construction of a concrete weir across the West Branch of the Ausable River, Lake Champlain Basin, in the Town of Wilmington, Essex County. ECL Section 15-2713(3)(a) designates the West Branch of the Ausable River as a recreational river under the State's Wild, Scenic and Recreational River System Act ("WSR"), Article 15, Title 27 of the Environmental Conservation Law ("ECL"). Although the river is located within the Adirondack Park, ECL Section 15-2705 provides that the Commissioner, not the Adirondack Park Agency, has exclusive jurisdiction over all State-owned river areas in the Park which are part of the WSR system.

According to the NYRU, the water quality certification (the "Certification") that the New York State Department of Environmental Conservation (the "Department") issued to ORDA must be suspended, because the Certification does not include a permit required pursuant to the WSR. NYRU argues further that the Certification is defective because there was no public notice in connection with the Certification's issuance.

By letter dated July 23, 2001, NYRU wrote to Commissioner Erin M. Crotty, and to Stuart Buchanan, Regional Director for Region 5, requesting that the Certification be suspended. On August 9, 2001, NYRU filed a motion addressed to Daniel E. Louis, Acting Assistant Commissioner for the Office of Hearings and Mediation Services ("OHMS"). NYRU's motion requested that OHMS suspend the Certification. The motion sought additional relief, specifically, that OHMS direct the Department to answer the motion and allow NYRU to respond, and, in the event the allegations in the motion were proven, that OHMS vacate the Certification and remand the application to the Department for public notice.

On August 24, 2001, the Department denied NYRU's request to suspend the Certification. Thereafter, on September 20, 2001, the Administrative Law Judge directed NYRU to respond to the Department's denial. On October 4, 2001, NYRU filed its response.

MOTION PROCEDURES

Section 621.14(a)(5) of Title 6 of the Official Compilation of New York Codes, Rules and Regulations ("6 NYCRR") provides that a permit may be modified, suspended or revoked at any time, at the request of "any interested party," on the grounds that a permittee is not in compliance with previously issued permit conditions, orders of the commissioner, any provisions of the ECL or regulations related to the permitted activity.(1) NYRU brings its motion under this regulatory provision, alleging that ORDA did not obtain the requisite WSR permit to construct and operate the weir, and that, as a result, the Certification must be suspended.

The regulation expressly provides that "[d]enials of requests for modification are not subject to public notice, comment, or hearings." Section 621.14(a) (emphasis supplied). Prior administrative cases make clear that "[i]t is within [Department] Staff's sole determination" to decide whether a request for modification is justified. Matter of Application of Laidlaw Environmental Services, Inc., et al., ALJ Ruling and Order, 1993 WL 1480629 (Nov. 15, 1993); Matter of Modification of Water Supply Permit/Village of Garden City, Interim Decision, 1980 WL 88093 (May 30, 1989). In Matter of Village of Garden City, the Commissioner's interim decision pointed out that the regulation assures that a permittee will "only be required to contend with permit modification requests which the Staff view as having sufficient merit." 1980 WL 88093, *1.

The regulation is silent with respect to instances where the Department has denied a request that a permit be suspended or revoked. A third-party request for suspension or revocation of a permit was considered in In the Matter of the Application of Monroe County, Commissioner's Ruling, 1993 WL 267964 (April 14, 1993). Petitioners in that case requested that the permits to construct and operate a landfill be suspended or revoked, alleging that newly discovered information showed that a prior determination to dispense with an adjudicatory hearing was based upon materially inaccurate documents. The Commissioner noted that "the procedures for permit modification and revocation" are only available to a third party where Staff determines that such action is justified, and that if Staff declines to act, "the petitioning party has no administrative recourse." 1993 WL 267964, *1. Nevertheless, the petition was treated as a request to reopen the hearing, and the merits were addressed.

The same considerations outlined above concerning permit modifications and revocations apply where a third party seeks suspension, even though the regulation does not include denials of a request for suspension in the provision proscribing public notice, comment or hearings where Department Staff has denied a request to modify a permit. Here, Department Staff has determined that NYRU's request to suspend the permit is unjustified. Therefore, NYRU cannot avail itself of the regulation's provisions that would allow for a public hearing in this matter.

Moreover, a review of the factual and procedural background of this matter lends further support to the conclusion that the Department's determination should not be disturbed. NYRU's motion is analogous to a late-filed petition for party status under 6 NCYRR Section 624.5(c). That provision states that untimely petitions must comply with the requirements for a petition for party status, and will not be granted unless the petitioner can show (1) good cause for the delay; (2) that the petitioner's participation will not significantly delay the proceeding or unreasonably prejudice the parties; and (3) that participation will materially assist in the determination of issues raised in the proceeding. Thus, NYRU bears the burden of showing whether a substantive and significant issue exists that would warrant adjudication. See 6 NCYRR Section 624.4(c).

On August 10, 1999, the Department issued the Certification for the proposed weir to ORDA to build and operate a concrete weir across the West Branch of the Ausable River. The weir is intended to monitor ORDA's compliance with a limitation on the amount of water to be diverted from the river for snowmaking at the Whiteface Mountain Ski Complex. According to Department Staff, the project was included in the Whiteface Ski Area Use and Management Plan ("UMP"), and subject to public notice and hearing in that context.

The project was also publicly noticed by the United States Army Corps of Engineers (the "Corps") on July 1, 1999, for a thirty-day comment period. No comments were received during that time. After the close of the comment period, on August 16, 1999, NYRU provided comments to the Corps, objecting to the project because of the river's designation under the WSR Act, and asserting that a less intrusive and more economical alternative to the weir could be employed. On August 27, 1999, the Corps issued a permit for the project. Upon expiration, the Certification was reissued in October 2000.

In its request for suspension, NYRU initially argued that the project required a stream disturbance permit and a WSR permit, and that the weir was not a minor project and thus was not exempt from the public notice requirements of 6 NCYRR Section 621.4(a)(1)(ii). In response to the Department's denial, NYRU has conceded that ORDA was not required to obtain a stream disturbance permit, and that the weir is a minor project.

Still at issue, however, is the exemption for an "accessory use," under the WSR Act. In its denial, the Department relies upon the accessory use exemption in contending that ORDA was not required to obtain a permit for the weir. Section 666.13(J)(7) of 6 NYCRR, which appears in the Part 666 Use Guidelines Table under "Recreational Uses and Developments," provides that no permit is required for "[a]ccessory uses for any authorized land use or development." Section 663.3(b) of 6 NYCRR defines the term "accessory use" to mean "any use of a structure, lot or portion thereof that is customarily incidental and subordinate to and does not change the character of the principal use of the structure or lot." Department Staff's denial maintains that the weir would be an accessory use for the Whiteface Mountain Ski Complex, and that "the snow making system intake with water flow monitoring device, is an approved recreational land use and is in the approved Unit Management Plan for the Whiteface Mountain facility."

In its response, NYRU contends that the exemption is not applicable. NYRU argues that the regulation refers to "any use of a structure," not a structure itself, and points out that an "accessory structure" is separately defined (see 6 NYCRR Section 666.3(a) ("accessory structure means any structure covering an area of 800 square feet or less, located on the same premises and incidental and subordinate to the main structure").

NYRU advances several other grounds to support its argument that a WSR permit is required, specifically: (1) the weir is not compatible with the Act's purpose; (2) the weir is not a "stream improvement structure[] for fisheries management purposes" and is thus prohibited on a recreational river such as the West Branch of the Ausable; (3) ORDA has not obtained a permit, pursuant to 6 NYCRR Section 666.13, Table ¶B(1), for the weir, which would be a structure that would modify a waterway by impoundment or diversion; and (4) ORDA has not obtained a permit, pursuant to 6 NYCRR Section 666.13, Table ¶K(5), for disturbance of the banks or bed of a river, including the fill or excavation that would be required as part of the construction of the weir. NYRU's initial motion also maintained that the Note in subsection (ii) of Section 666.13(J)(7) places limitations on any waiverof a permit for accessory use for recreational land use or development. Nevertheless, Staff's denial correctly points out that the setback requirements in Note (ii) do not apply to accessory uses, because that Note is not specifically referenced in Section 666.13(J)(7).

As NYRU acknowledges, it is seeking an extraordinary remedy in this case. While both Department Staff's and NYRU's arguments with respect to the interpretation of the term "accessory use" are conclusory, NYRU bears the burden of showing that a substantive and significant issue exists that would warrant the unusual relief that it seeks. NYRU has not provided any explanation for the delay in bringing this motion, even though NYRU was aware of the proposed construction and provided comments in opposition to the project after the close of the Army Corps of Engineers comment period in August of 1999. The project was reviewed by the Department and the Corps, and permits were issued over two years ago. On this record, it does not appear that there has been any material change in the project, or any new information that would support suspension of the Certification. Thus, NYRU has not established that good cause exists to consider its untimely filing.

Moreover, NYRU cannot demonstrate a lack of prejudice to other parties, or that a hearing would not result in significant delay. Construction of the weir is already underway. It is also significant that the project is intended to ensure ORDA's compliance with the limits on the amount of water that may be withdrawn for snowmaking. Any delay could, therefore, adversely affect the river itself, particularly under drought conditions.

Finally, NYRU has not established that its participation in a hearing, even if one were available in this instance, would materially assist in determining this issue. From a purely technical standpoint, the explanation set forth in the Corps' Memorandum for the Record that ice that forms on the river significantly limits the available alternatives, and the conclusion that potential impacts to the waterway are minimal, supports Department Staff's position. Under the circumstances, NYRU has not established that sufficient grounds exist to revisit the Department's determination that the project is exempt from the permitting requirements of the Wild, Scenic, and Recreational Rivers Act, and that the Certification be issued.

CONCLUSION

For the reasons set forth above, the motion is denied.

/s/
Maria E. Villa
Administrative Law Judge

TO: Stuart A. Buchanan
Regional Director
NYS Department of Environmental Conservation
Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977

Jay Rand
Olympic Regional Development Authority
Olympic Center
Main Street
Lake Placid, New York 12946

Richard Roos-Collins, Esq.
Natural Heritage Institute
2140 Shattuck Street, Fifth Floor
Berkeley, California 94704-1222

1 The regulation provides further that all such requests must be in writing, contain facts or reasons supporting the request, and be sent to the regional permit administrator. Although NYRU's request was addressed to the Regional Director and the Commissioner, rather than the regional permit administrator, this procedural irregularity is not sufficient to bar further consideration of the motion.

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