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Danahy, Susan and Phillip Garofalo - Decision, March 14, 2002

Decision, March 14, 2002

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

12233-1550

In the Matter

- of -

the application for a use and protection of water permit, and water quality certificate
pursuant to the Environmental Conservation Law (ECL) Articles 15 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 608

- by -

SUSAN A. DANAHY AND PHILLIP GAROFALO

PERMIT APPLICATION No. 8-3224-00322/00001

DECISION

March 14, 2002

Decision of the Commissioner

The attached hearing report of Administrative Law Judge Molly T. McBride in the matter of the application of Susan A. Danahy and Phillip Garofalo to construct a bulkhead in the Town of Canandaigua, Ontario County, is hereby adopted as the Decision in this matter subject to my comments below.

The hearing record demonstrates that the project does comply with the standards for issuance of a protection of waters permit and water quality certification.

Accordingly, the application is granted.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
March 14, 2002

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

625 Broadway
Albany, New York 12233-1550

In the Matter

-of-

the application for a use and protection of water permit, and water quality certificate pursuant
to the Environmental Conservation Law (ECL) Articles 15 and Title 6 of the Official Compilation
of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 608 by

SUSAN A. DANAHY AND PHILLIP GAROFALO

Permit Application No. 8-3224-00322/00001

HEARING REPORT

-by-

____________/s/____________
Molly T. McBride
Administrative Law Judge

Proceedings

Susan A. Danahy and Phillip Garofalo, 38 Old Farm Circle, Pittsford, New York 14534 ("the Applicants") filed an application for a protection of waters permit and water quality certification with the New York State Department of Environmental Conservation ("the Department"). The Applicants seek to construct a 50' concrete bulkhead along the shoreline of Canandaigua Lake in an area in front of a residence owned by them. The proposed project is located on Canandaigua Lake in the Town of Canandaigua, County of Ontario, New York in the area immediately in front of 3314 Fallbrook Park, Canandaigua, New York.

The project requires a protection of waters permit pursuant to Environmental Conservation Law ("ECL") Article 15 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Part 608 and a water quality certification pursuant to 6 NYCRR 608.9.

Pursuant to ECL Article 8 (State Environmental Quality Review Act, "SEQRA") and 6 NYCRR Part 617, the Department Staff issued a Negative Declaration on December 7, 2000 and consequently no further review is required under SEQRA.

The application was filed on or about November 6, 2000. The Department, by Notice of Denial dated April 26, 2001, denied the application stating that it did not meet permit issuance standards as set forth in Use and Protection of Waters, 6 NYCRR 608.8. More specifically, Staff stated that the proposed bulkhead location was measured to vary between 10 to 14 feet lakeward of the mean high water level and therefore, at that position the bulkhead was not reasonable or necessary to protect Applicants' shoreline from the effects of erosion. Further, the bulkhead would result in unreasonable and unnecessary damage to the natural resources of the State. Applicants timely filed a Request for Hearing.

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 October 7, 2001 in the Canandaigua Messenger and on September 26, 2001 in the Department's Environmental Notice Bulletin.

The hearing was held on November 5, 2001 at the Town of Canandaigua Town Hall, 5440 State Route 5 & 20 West, Canandaigua, New York before Administrative Law Judge ("ALJ") Molly T. McBride. The Applicants appeared personally and by Underberg & Kessler, Ronald G. Hull, Esq. of counsel. The Department was represented by Lisa Perla Schwartz, Esq., Assistant Regional Attorney, NYS DEC, Region Eight.

The legislative hearing was convened first. Two persons came forward to speak on the project, Thomas and Virginia McLaughlin, the adjoining landowners to the north of the project site. They spoke in favor of the application. Both stated that the lack of a bulkhead on the Applicants' property has resulted in excessive deposits of plant life, dead fish, sea gulls and other debris on the Applicants' property daily. The accumulated waste has a foul odor such that they are unable to use their back yard or patio during the spring and summer months when the Applicants have not cleaned the beach in front of their property daily. They acknowledged that the Applicants reside in the Rochester, New York area and use this property mainly on weekends. As a result, debris does not get cleaned up at the property on a daily basis. They also are concerned that the lack of a bulkhead on the Applicants' property causes their bulkhead to suffer from erosion. The McLaughlin property has a bulkhead as does the neighbor on the south side of the Applicants' property. The lack of a bulkhead on the Applicants' property has also caused erosion damage to both neighboring bulkheads.

Counsel for the Applicants also submitted a letter from the adjoining landowner to the south. That neighbor also is in favor of the project as proposed by the Applicants for the same reasons stated by the McLaughlins. Also, this neighbor has three small children who often go onto the Applicants' property and they are concerned about their children's safety with the debris that washes up.

The issues conference was convened at the conclusion of the legislative hearing. No persons, agencies or organizations sought party status.

At the conclusion of the issues conference the adjudicatory hearing was commenced. The following witnesses testified on behalf of the Applicants: Thomas McLaughlin, Susan A. Danahy and Joseph McMullen, environmental consultant with Terrestrial Environmental, Inc. The following witnesses testified on behalf of the Department: Kathy G. Kirsch, Habitat Biologist for the Department, Brad Hammers, Senior Aquatic Biologist from the Department; Arthur Kirsch, Senior Wildlife Biologist for the Department and George Barden, Ontario County Soil and Water Conservation District watershed inspector for Canandaigua Lake.

The transcripts were received on or about November 23, 2001 and the parties submitted briefs on or about December 3, 2001. The hearing record closed on December 3, 2001 upon receipt of the briefs.

Position of the Parties

Applicants

The Applicants have argued that the requested permit is reasonable and necessary to prevent shoreline erosion and to protect their property from the dangers and nuisance posed by the debris that washes up on their property. Applicants have considered and rejected an alternate site for the placement of the bulkhead that was proposed by the Department. It is their position that debris will still be a serious and significant issue as will erosion. Applicants contend that due to the varying water levels in the Lake, the bulkhead, as proposed by Staff, will be dry for at least several months of every year.

Department

The Department contends that the Applicants have not met the burden of demonstrating that the project meets the standards for permit issuance as detailed in Part 608.8 and has proposed that the bulkhead be placed closer to the shoreline than requested by Applicants. The Department proposal moves the bulkhead an average of six feet closer to the shoreline than the Applicants requested. According to Staff, the bulkhead will then meet permit issuance standards. The Department also argues that the Applicants' application identified protection from erosion as the only reason for the project and therefore, the issue of debris washing onto the property should not be considered.

Issues for Adjudication

Applicants proposed two issues for adjudication, two of the three standards for permit issuance as detailed in Part 608.8 (a) &(c). These were also the reasons stated by Staff in its denial of the application. Those standards are:

(a) the proposal is reasonable and necessary;

(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.

The issues for adjudication, as determined at the close of the issues conference held on November 5, 2001 are as follows:

1) Is the proposal reasonable and necessary;

2) Will the project proposed 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.

Findings of Fact

  1. Applicants applied for a protection of waters permit and water quality certification on November 6, 2000 to construct a 50' concrete bulkhead along the shoreline of Canandaigua Lake, immediately in front of the property located at 3314 Fallbrook Park, Canandaigua, N.Y. The proposed project is located on Canandaigua Lake, in the Town of Canandaigua, Ontario County.
  2. The Applicants purchased the property in February, 2000. The property is not the primary residence of the Applicants but rather is used primarily on weekends.
  3. The mean high water elevation for Canandaigua Lake is 689.4 feet above sea level.
  4. The permit application identifies prevention of shoreline erosion as the reason for the project. Applicants and Department Staff also discussed the issue of debris wash up during the permitting process and Staff was aware that that was one of the reasons the bulkhead was being proposed.
  5. The property is bordered by properties that have DEC permitted bulkheads that extend lakeward of the bulkhead proposed by Applicants by 12.2 feet on the north end and 11 feet on the south end.
  6. The property has suffered erosion of its shoreline of approximately 20 feet since 1993.
  7. Canandaigua Lake has varying lake levels during the course of the calendar year that effect the lake levels at the Applicants' property.
  8. The Applicants' proposal would place the bulkhead at 687.3 feet above sea level on the south end and 687.9 on the north end. The Department's proposal would place the bulkhead at 688.7 feet on the north end and 688.6 feet above sea level on the south end.
  9. Debris such as dead fish, birds, vegetation and/or garbage wash up onto the Applicants' shoreline on a daily basis.
  10. Decomposing debris and its associated smell have resulted in adjoining property owners being unable to use their backyards during times when the Applicants are not at their property to clean up the shoreline.
  11. The Department proposed one alternative placement of the bulkhead, it is closer to the shoreline by 4 feet on the north end and 9 feet on the south end.
  12. There was no evidence of fish spawning in the area of the proposed bulkhead when Staff visited the site. (T. 179)(1) There was no evidence of fish nests in the area of the proposed bulkhead when Staff visited the site. (T. 158) No wildlife was observed on the Applicants' property when Staff visited the site. (T. 198)

Conclusions of Law

  1. 6 NYCRR Section 624 applies to permit hearings. 6 NYCRR 624.9(b) states: "The applicant has the burden of proof to demonstrate that its proposal will be in compliance with all applicable laws and regulations administered by the department."
  2. This permit application is for the issuance of a protection of waters permit and water quality certification pursuant to 6 NYCRR Part 608 and the Federal Clean Water Act. 6 NYCRR 608.8 identifies the standards for permit issuance as follows:

    The basis for permit issuance...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, unnecessary or uncontrolled damage to the natural resources of the State...

    For purposes of this application, it is agreed that only sections 608.8(a) & (c) are applicable.

  3. The Applicant has indicated that the bulkhead is requested to help prevent shoreline erosion and also, as stated at the hearing, to eliminate the washing up of debris on the shoreline.
  4. The shoreline of the Applicants' property has suffered considerable erosion in the recent past. The neighboring properties have bulkheads that contribute to the erosion.
  5. 6 NYCRR 608.8 requires a showing that the permitted activity is reasonable and necessary and will cause no unreasonable, unnecessary or uncontrolled damage to the natural resources of the State. Here it has been shown that the area in question is subject to varying lake levels throughout the calendar year. The varying lake levels will result in the bulkhead face being dry for some period of time each year whether it is placed at the Applicants' proposed site or the Staff's proposed site. The area in front of the bulkhead will be littoral zone for a portion of the year as well, regardless of where the bulkhead is placed.
  6. The issuance of a protection of waters permit and water quality certification consistent with the Applicants' application would not have an undue adverse effect on the present or potential value of the area immediately in front of the bulkhead. The testimony at the hearing and the evidence presented established that the area will have littoral zone characteristics no matter which position for the bulkhead is chosen. The littoral zone moves with the lake levels.
  7. The alternative proposed by the Department would not afford the same protection from the washing up of debris as the Applicants' placement. Although the distance between the two is an average of six feet, the water level difference is significantly less, .8 feet on the north end and 1.3 feet on the south end.
  8. The Applicants have shown that the bulkhead, as requested in the application, is reasonable and necessary to prevent shoreline erosion and build up of debris.
  9. There has been no showing made that the bulkhead, as requested in the application, would cause unreasonable, uncontrolled or unnecessary damage to the natural resources of that area. Experts for both parties agreed that the area in front of the Applicants' proposed bulkhead and Staff's proposed bulkhead would be a littoral zone during some months and would be dry during other months. The water depth would be quite shallow a great deal of the time that water is meeting the bulkhead at either location.
  10. The placement of the bulkhead at Staff's site would not serve the purpose of avoiding debris wash up as effectively as placing the bulkhead at Applicants' site. The Applicants' proposed placement site was dry at Staff's site inspection in November, 2000.
  11. Referencing Hearing Exhibit G, Canandaigua Lake Level for 2001, the bulkhead would have been dry in Staff's placement for almost the entire year except April and a very small part of May, 2001. The area in front of the Applicants' proposed bulkhead would have been dry in January, a portion of February and March, and late September through early November (when the chart was last updated). Based upon Exhibit G, the bulkhead would provide minimal, if any, protection from the wash up of debris if placed in Staff's location. The area in front of the bulkhead that remained dry would then collect the dead fish, birds, etc. that result in noxious odors. However, it would provide protection from shoreline erosion. The bulkhead would eliminate the washing up of debris for the majority of the year if located as requested by Applicants. It would also provide erosion protection.
  12. The Applicant has demonstrated that the standards for issuance of a protection of waters permit and water quality certification have been met.

Conclusion

The permit application should be granted as it meets the permit issuance standards of 6 NYCRR 608.8.

1 Numbers in parenthesis refer to pages in the Hearing transcript.

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