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DePierro, Richard - Decision, March 12, 2003

Decision, March 12, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter of

the Application of RICHARD DePIERRO
for a Freshwater Wetlands permit pursuant to Environmental Conservation Law ("ECL")
Article 24 and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR")to construct a single family dwelling, parking area,
and septic system on Suffolk Street, Sag Harbor, Town of Southampton, Suffolk County, New York
in the adjacent area of freshwater wetland SA-31

DEC Project No. 1-4736-05031/00001

DECISION
March 12, 2003

Decision of the Commissioner

The attached hearing report of Administrative Law Judge ("ALJ") Maria E. Villa in the matter of the application of Richard DePierro (the "Applicant") for a freshwater wetlands permit for the construction of a house, parking area, and septic system, which would include the placement and grading of 120 cubic yards of fill, in Sag Harbor, Town of Southampton, Suffolk County, New York, is hereby adopted as the Decision in this matter subject to my comments below.

The legislature has declared it to be the public policy of the State to preserve, protect and conserve freshwater wetlands and the benefits derived from them. See, Environmental Conservation Law Section 24-0103, Declaration of Policy. The Department's regulations contain the standards to implement the legislative public policy. See, Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Freshwater Wetlands Permit Requirements. All applicants for freshwater wetlands permits must satisfy the implementing regulations to be granted a permit.

An applicant for a Department permit bears the burden of proof to show that the project proposed meets the applicable regulatory criteria. 6 NYCRR Section 624.9(b)(1). The Department's freshwater wetlands regulations are established to evaluate the environmental compatibility of a proposed project. 6 NYCRR Section 663.5. In this instance, the Applicant did not present a prima facie case sufficient to show conformity with the regulatory criteria. Such a showing is necessary to favorably pass on a proposed project. As noted in the ALJ's Hearing Report, the Applicant did not show how the usually incompatible activities associated with its proposal, particularly the construction of a dwelling within twenty-eight feet of the wetland boundary, and the installation of a septic system sixty feet from the wetland boundary, with the associated clearing and placement of 120 cubic yards of fill, would comply with the applicable regulatory criteria. Accordingly, the application for a freshwater wetlands permit is denied.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
March 12, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

625 Broadway
Albany, New York 12233-1550

In the Matter of
the Application of RICHARD DePIERRO
for a Freshwater Wetlands permit pursuant to Environmental Conservation Law ("ECL")
Article 24 and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR") to construct a single family dwelling,
parking area, and septic system on Suffolk Street, Sag Harbor, Town of Southampton,
Suffolk County, New York in the adjacent area of freshwater wetland SA-31

DEC Project No. 1-4736-05031/00001

HEARING REPORT
-by-

____________/s/_____________
Maria E. Villa
Administrative Law Judge

Proceedings

Background

The Applicant, Richard DePierro, owns real property on Suffolk Street in Sag Harbor, New York, in the Town of Southampton. On November 9, 1999, the Applicant applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for a freshwater wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 24 to construct a single family residence, parking area, and septic system on the site, which would involve the placement of 120 cubic yards of fill. All of these activities are proposed for the adjacent area of a Class II freshwater wetland, designated SA-31. Department Staff concluded that this project was a Type II action pursuant to ECL Article 8 (the State Environmental Quality Review Act), and its implementing regulations, at Section 617.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR"), and therefore would not require an environmental impact statement (EIS).

On February 23, 2000, Department Staff issued a notice of incomplete application to Mr. DePierro, indicating that a Stage 1 A/B archaeological survey must be performed, and a report of that survey must be provided. Exhibit 15a. A letter dated February 23, 2000 accompanied the notice of incomplete application. Id. That letter recited the regulatory requirements pursuant to Part 663, and concluded that

since there do not appear to be any viable alternatives which would allow construction of a dwelling at this site, the Department intends to deny your application. In order to render the application complete and proceed to public notice and formal denial, however, a final determination from the office of Parks, Recreation and Historic Preservation is required.

Id.

A Notice of Complete Application appeared in the November 7, 2001 edition of the Department's Environmental Notice Bulletin, and in the November 8, 2001 edition of the Southampton Press. By letter dated December 4, 2001, the Staff denied Mr. DePierro's permit application because the proposed activities would be incompatible with the wetland and its functions. By letter dated December 24, 2001, Mr. DePierro requested a hearing on the denial. The matter was referred to the Department's Office of Hearings and Mediation Services on February 4, 2002, and assigned to Administrative Law Judge ("ALJ") Maria E. Villa.

A Notice of Public Hearing was published in the April 3, 2002 edition of the Environmental Notice Bulletin, and in the April 11, 2002 edition of the Southampton Press. The hearing was scheduled to take place on May 23, 2002, at the North Haven Village Hall in Sag Harbor, New York. On that day, the ALJ, the parties, and their witnesses appeared, but, due to a misunderstanding as to the Applicant's responsibility to obtain a court reporter to transcribe the proceedings, it was not possible to proceed with the hearing. Present at the North Haven Village Hall were the ALJ; Lawrence J. Koncelik, Esq., counsel for the Applicant; Vernon G. Rail, Esq. and Craig Elgut, Esq., counsel for Department Staff; Stephen Lorence, Regional Manager of the Bureau of Habitat for the Department's Region 1 office; the Applicant, Mr. DePierro, and his consultant, Philip Anderson. No members of the public appeared to make any statements concerning the application. The parties were able to complete a site visit on that day.

Issues Conference

The parties re-convened on August 7, 2002, at the North Haven Village Hall to begin the issues conference. The Applicant was represented by Lawrence J. Koncelik, Esq. The Department Staff was represented by Vernon G. Rail, Assistant Regional Attorney. No intervenors filed petitions for party status; thus, the parties to the hearing were the Applicant and Department Staff.

To identify the issues for adjudication, the parties reviewed the permit issuance criteria outlined at 6 NYCRR Section 663.5(e), and stipulated that the issue to be considered at the hearing would be whether the application satisfied the permit issuance criteria set forth in Part 663, and specifically, the standards set forth at 6 NYCRR Section 663.5(e), which includes the three-part compatibility test outlined at Section 663.5(e)(1), and the weighing standards listed at Section 663.5(e)(2). The Applicant and Department Staff stipulated as to the wetland boundaries.

Adjudicatory Hearing

Following the issues conference, the adjudicatory hearing began. The Applicant called his consultant, Philip Anderson, as a witness, and also testified on his own behalf. Stephen P. Lorence, the Regional Manager of the Bureau of Habitat in DEC Region 1, testified on behalf of Department Staff.

Following the presentation of the Applicant's direct case, counsel for Department Staff moved to dismiss the application, based upon the Applicant's failure to present a prima facie case. After hearing argument from counsel for the Applicant, the ALJ denied the motion on the grounds that the Commissioner, and not the ALJ, is the final decisionmaker in this matter, and that evidence offered by Staff could be helpful in providing a full record to the Commissioner.

The Office of Hearings and Mediation Services received the stenographic record of the hearing on September 24, 2002. On that date, the hearing record closed.

Findings of Fact

  1. The DEC Commissioner promulgated the official freshwater wetlands survey maps for Suffolk County in 1991. Freshwater wetland SA-31 is identified on the Sag Harbor Quadrangle as a Class II wetland.
  2. The features outlined in 6 NYCRR Section 664.5(b) that are associated with Freshwater Wetland SA-31, and which form the basis for its Class II designation, are not part of this hearing record. The wetland boundary is undisputed.
  3. The Applicant's property consists of a parcel of undeveloped land, almost an acre in size, located on Suffolk Street in Sag Harbor, New York, in the Town of Southampton. Portions of the Applicant's property are located in wetland SA-31 and its adjacent area. The wetlands at the site are largely undisturbed, with a deciduous swamp overstory of red maple and tupelo, both of which are wetland indicator species. There is also an understory of shrubs. Ferns, standing water, and hydric soils are present at the site, as well as other wetland indicators such as water stained leaves, drift lines and saturated soil.
  4. The subject parcel is located in a single-family residential area, with public water. There, the Applicant proposes to construct a single family dwelling , a sanitary septic system, and parking area. The dwelling would be elevated, on piles, and a catwalk about 120 feet long would be constructed to traverse the freshwater wetland's adjacent area to provide access to the dwelling. The proposal would involve the placement of approximately 120 cubic yards of fill in the adjacent area.
  5. The house would be located a minimum of 28 feet from the freshwater wetland boundary. The proposed septic system's leaching pool would be located about 60 feet from the boundary. The proposed development at the site would be located on a peninsula of uplands between two sections of freshwater wetland SA-31. A map of the site (Exhibit 5h), showing the freshwater wetland boundary and the proposed structures, is attached to this hearing report.
  6. The proposed house site would not be situated in the wetland, but is within the adjacent area. The footprint of the dwelling proposed would be 40 feet by 30 feet, for a total of 1200 square feet.
  7. The average size of houses in the project area is on the order of 3000 to 3500 square feet in total, including the top and bottom floors.
  8. To construct the house, the septic system, and the parking area, the Applicant would clear roughly fifty percent of the upland forest canopy and herbaceous and shrub layer of vegetation on the site. As part of the construction of the dwelling on the site, the entire area within the limit of ground disturbance indicated on the survey would be cleared of vegetation, including mature trees, as well as shrubs.
  9. Filling would be necessary in the adjacent area. The total amount of fill to be placed would be approximately 120 cubic yards. Fill would be required to place the sanitary system in the proposed location, and excavation would also be required in that area to provide for the sanitary rings. The fill would be necessary to raise the sanitary system's elevation, and heavy equipment would need to be brought in to drive piles in the wetland adjacent area to support the proposed dwelling. In addition, ditches would be dug to accommodate the necessary utilities.
  10. The fill material would need to be graded, which would compact soils in the regulated wetland and adjacent area. Grading would take place approximately five feet from the wetland boundary.
  11. Typically, a house is built on piles where the water table is too close to the surface of the ground for a foundation to be practical. At times, the water level of the wetlands at the site is much higher than observed during a site visit in May of 2002, and therefore, at certain times, the site would be muddy and/or covered in standing water. Under these conditions, a catwalk would be necessary to access the site on a year-round basis, in all weather conditions. In addition, the sanitary system would have to be raised to provide for an adequate separation between the system and the groundwater.
  12. The grading, filling and clearing at the site, as well as the compaction of the soils attributable to the operation of heavy equipment on the property, would all affect the wetland. The placement of fill close to the wetland, with the associated changes in grade, runs the risk of soil being eroded and washed into the wetland as a result of heavy rains. Based upon the grade changes depicted on the survey, fill would be placed within approximately three feet of the wetland boundary, at one point. The use of heavy equipment on the site and the resulting soil compaction would have a very negative impact on the subsurface habitat of salamanders and other animals that use the area (invertebrates and vertebrates).
  13. The clearing of vegetation within the entire limit of the ground disturbance area would have an adverse impact, particularly with respect to migratory birds, which would use the area for feeding during their spring and fall migration. As noted above, approximately fifty percent or more of the upland forest canopy, as well as the herbaceous and shrub layer on the site, would be cleared and permanently destroyed if the project were allowed to proceed. This would be a substantial impact to the adjacent area and the benefits provided by the freshwater wetland. Based upon the survey, the area to be cleared would extend to approximately five feet from the wetland boundary.
  14. The proposed septic system poses a potential human health risk. The system's location in relation to the groundwater, the water table, and the wetland may allow pathogens to move through the soil to the surface water, or to the wetland on either the north or south side of the sanitary system.
  15. The wetland at the site provides benefits associated with pollutant uptake, and assists in purifying water by filtering out nutrients, such as nitrates, that might otherwise reach the subsurface water.
  16. Mr. DePierro purchased the property around 1988, for $44,000. Mr. DePierro had a mortgage, which has been paid, and there are no tax arrears.
  17. Mr. DePierro has not approached any of his neighbors to see if there is any interest in purchasing the property, but he did attempt to trade some of his land with a neighbor to the rear of his parcel so that the proposed septic system could be sited there. The neighbor refused. Mr. DePierro is 65 years old, and bought the property with the intention of building a house and living there.

Discussion

As set forth at Section 663.4(a) of 6 NYCRR, a permit or letter of permission is required for any regulated activity in a wetland or adjacent area. An "adjacent area" refers to "those areas of land or water that are outside a wetland and within 100 feet (approximately 30 meters), measured horizontally, of the boundary of the wetland." Section 663.2(b).

Section 663.5(c) provides that, in evaluating a permit application, the Commissioner must apply the standards for permit issuance set forth in subdivision (e) of Section 663.5, in conjunction with the freshwater wetland's classification as indicated on the official freshwater wetlands map filed by the Department. Here, a portion of the Applicant's property is located in freshwater wetland SA-31, which is identified as a Class II wetland, and in its adjacent area. Pursuant to 6 NYCRR Section 663.5(e)(2) ("Standards for Permit Issuance"), Class II wetlandsprovide important wetland benefits, the loss of which is acceptable only in very limited circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of a Class II wetland.

Section 663.5(d) provides that "as shown in the chart in subdivision (e) of this section, a determination of compatibility and a weighing of need against benefits lost are the criteria for decisionmaking."

The Applicant has the burden of proof to demonstrate that his proposal would meet the applicable permit issuance criteria. See 6 NYCRR Sections 624.9(b)(1) and 663.5(a). The Applicant argued that the site proposed was the only practicable alternative for the construction of a residence on the property, that the area is highly developed, and that the project would not have any adverse effect on the environment, and only a minimal effect on the wetlands. Accordingly to the Applicant, a denial of the application would result in severe financial hardship, in that the property would be rendered essentially useless.

Department Staff took the position that the proposal would be incompatible with the standards for permit issuance. Specifically, according to Department Staff, the construction of a single-family dwelling, the placement and construction of a sanitary system, placement of fill, and site clearing in the area adjacent to the wetland are not compatible with Section 663.5(e), and that, in addition, the proposed location of a sanitary system in the adjacent area is incompatible under Section 663.4(d)(38). Department Staff argued that the parcel provides important freshwater wetlands benefits, that impacts to the freshwater wetland had been identified, and that, as a result, the application should be denied.

The standards for freshwater wetlands permit issuance include a three-part compatibility test that provides:

[a] permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area, if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss of, any part of the wetland, and (iii) would be compatible with public health and welfare.

6 NYCRR Section 663.5(e)(1). This Section goes on to provide that "[t]hese three tests are to be used to determine the compatibility of all activities identified as P(C) or P(N) in section 663.4(d) of this Part," or for any actions not listed in Section 663.4(d). The chart provided at Section 663.4(d) includes a list of regulated activities, and assigns a level of compatibility based on the nature of the activity and whether a proposed activity would take place in either a regulated freshwater wetland or the adjacent area. For regulated activities that require a permit ("P"), the levels of compatibility are "usually compatible" ("C"), "usually incompatible" ("N"), or "incompatible" ("X").

The regulated activities that the Applicant proposes to undertake at the subject parcel are identified in the chart provided at Section 663.4(d). Item 42 is the construction of a home and related structures. In a freshwater wetland's adjacent area, this activity is considered usually incompatible, or an "N" classified activity. Items 20, 23, and 25 on the chart at Section 663.4(d) are filling, clear cutting vegetation other than trees (except as part of an agricultural activity), and grading, respectively. In the adjacent area of a freshwater wetland, these activities are also considered usually incompatible. The introduction of sewage effluent, as would result from the installation of a septic system, is an incompatible, or "X" classified activity in a freshwater wetland's adjacent area, as denoted in Item 38 of the chart.

Section 663.5(e)(2) requires that the weighing standards must be applied to all activities identified as P(X) in 6 NYCRR Section 663.4(d), as well as all activities classified as P(N) (usually incompatible) that do not meet the three-part compatibility test discussed above. Accordingly, it is necessary to evaluate the "N" classified activities the Applicant proposes (construction of a home, filling, clear cutting, and grading) for compatibility under the three-part test, and, if the activities are incompatible, to apply the weighing standards. The weighing standards are automatically applied to the "X" classified activity, the installation of the septic system.

At the hearing, the Applicant called Philip Anderson, an environmental planner, who stated that he had testified in two prior Department hearings. Tr. at p. 20. Mr. Anderson testified that the proposed house location was the best, and in fact, the only practical alternative on the site. Tr. at pp. 30, 49 and 54. According to Mr. Anderson, there is a pond (which is sometimes dry) south of the property, and that the wetland flagged by the Department extends from the pond in a northerly direction towards the proposed building lot. Id. Mr. Anderson testified that there is another wetland system to the north of the property, which is "sometimes wet, sometimes dry." Id. The witness testified that, because the area closest to the road was not suitable for building due to the presence of the wetland, the Applicant had proposed a four-foot wide catwalk over the upland area (which is the adjacent area of the wetlands) of the property to the house. Tr. at pp. 29-30. The catwalk would pass between the wetland boundaries, with about twenty feet to the boundary on each side. Tr. at p. 34.

With respect to the impacts to the wetlands that would be anticipated from the construction of the home, and the filling, clearing and grading that would be necessary to complete the proposed project, Mr. Anderson testified that migratory birds visiting the site during construction would likely be disturbed, but that he had been to the site on many occasions, and had not noticed any birds. Tr. at p. 53. He stated that there would be limited ground disturbance, but did acknowledge that the ground disturbance would come "within five or six feet at the closest point within wetlands." Tr. at p. 53. The Applicant did not offer any persuasive evidence that the proposed project would be compatible with the preservation, protection and conservation of the wetland and its benefits, or would result in no more than insubstantial degradation to, or loss of any part of the wetland.

In addition, the Applicant's evidence was rebutted by the Department's witness, Stephen P. Lorence. Mr. Lorence testified that the wetland provided "a variety of wetland benefits that are mentioned in the law," and said that the wetland had not been severely affected by the neighboring homes in any way. Tr. at pp. 75-76. Department Staff introduced a series of photographs, taken at the time of a site visit on May 3, 2002. Tr. at p. 73, Exhibits 8, 9, and 10. The witness stated that, despite the extended drought conditions prevailing in the area at that time, there was standing water present in both the north and south wetlands at the site. Tr. at p. 74. Mr. Lorence noted that the high water mark on the trees bordering the wetland, as depicted in the photographs, was approximately two feet above the bottom of the wetland. Id.

Mr. Lorence testified credibly that the clearing, filling, and grading at the site, as well as the compaction of the soils attributable to the operation of heavy equipment during construction, would all affect the wetland. Tr. at p. 82. Mr. Lorence stated that the placement of fill close to the wetland boundary, with associated changes in grade, runs the risk of soil being eroded and washed into the wetland as a result of heavy rains. Id. Based upon the survey, Mr. Lorence testified the filling would result in changes in grade approximately three feet from the wetland boundary at one point. Tr. at p. 85. According to Mr. Lorence, soil compaction would have an adverse impact on the invertebrates and vertebrates that live in the soil in the adjacent area, including the subsurface habitat of salamanders and other animals that use the area. Tr. at pp. 82-83. Mr. Lorence stated that migrating birds would use the site to rest and feed, and that the clearing proposed on the site would have an adverse impact upon these species. Tr. at pp. 83-84. Based upon the destruction of fifty percent or more of the vegetation in the wetland adjacent area, Mr. Lorence concluded that clearing would be incompatible with the preservation, protection, and conservation of the wetland and its benefits, the first prong of the compatibility test. Tr. at pp. 87-88. Mr. Lorence testified that the filling and grading proposed would also be incompatible, because of the grade changes that would allow for runoff to flow into the wetland more quickly, carrying sediment and adversely affecting the wetland as a result. Tr. at p. 88.

Mr. Lorence testified further that, for the same reasons, the activities proposed would result in more than insubstantial degradation of the wetland and its functions, which is the second prong of the compatibility test. Tr. at p. 89. According to Mr. Lorence, this was particularly true given the close proximity of the residence to the wetland. Id. Finally, Mr. Lorence testified that the application did not satisfy the third part of the compatibility test, because the project would not be compatible with public health and welfare. Id. Mr. Lorence stated that "the law mentions several benefits, much of which are the wildlife benefits, the open space benefit, the use of a wetland for wildlife education and scientific purposes, erosion and sedimentation control, groundwater protection, and pollution protection." Id. Mr. Lorence concluded that development at this site would not be consistent with these public benefits, and would, in fact, result in a loss of those benefits. Id.

Some of Mr. Lorence's observations on this point were the subject of cross-examination by the Applicant. Mr. Lorence testified to the recreational and educational value of the wetland, observing that the site provides, in effect, a "living classroom." Tr. at p. 99. The Applicant challenged Mr. Lorence's conclusion that the site was suitable for educational and scientific purposes, pointing out that the subject parcel is private land. Tr. at p. 121-23. In light of this, Mr. Lorence's conclusions on this point are not persuasive. However, Mr. Lorence's testimony as to the wetlands' importance in filtering nutrients, such as nitrates, and preventing those nutrients from reaching subsurface water, as well as the wetland's ability to uptake pollutants and help to purify the water before it seeps into the ground, were not challenged by the Applicant. Tr. at p. 105-06.

Finally, Mr. Lorence testified credibly that installation of the septic system would result in additional pollution. Tr. at p. 107. Mr. Lorence noted that the septic system proposed for the site, which would be installed in the wetland adjacent area, is listed as "P(X)," which is incompatible with wetland functions and benefits. Tr. at p. 93. According to Mr. Lorence, based upon Department Staff's knowledge of the groundwater, the water table, and the proximity of the septic system to the wetlands at the site, there exists a potential for a serious human health concern due to pathogens moving through the soil to the wetland on either the north or south side of the sanitary system. Tr. at p. 93. Mr. Lorence also stated that a greater distance to the wetland would be required to filter out these pathogens, and observed that, during the periods of high water that could be expected at this site, this problem could be exacerbated. Id. The groundwater at the site may also be affected. Tr. at p. 108. This testimony was not rebutted, and therefore is afforded significant weight.

Consequently, based upon this record, the construction of the house and related structures, as well as the clearing, filling and grading proposed, are not compatible with the functions and benefits of the wetlands at this site. Therefore, it is necessary to evaluate the proposal using the weighing standards set forth in the regulations. As stated above, the septic system, designated as an incompatible activity, is automatically reviewed under the weighing standards.

The weighing standards for Class II wetlands provide that, for these activities to be permitted, the proposed project must (1) be compatible with the public health and welfare, (2) be the only practicable alternative that could accomplish the Applicant's objectives, and (3) have no practicable alternative on a site that is not a freshwater wetland or adjacent area. In the case of a Class II wetland, the proposed activity must also minimize degradation to, or loss of, any part of the wetland or its adjacent area, and must minimize any adverse impacts on the functions and benefits the wetland provides.

According to the regulations, in order to be compatible with the public health and welfare, a proposed activity must be consistent with physical health, if necessary, as judged by health professionals, and consistent with related federal, State and local laws, regulations and policies. 6 NYCRR Section 663.5(f)(1)(i) and (ii). Inconsistency with these standards weighs against permit issuance.

Mr. Lorence testified that the installation of a septic system at this site is not compatible with the public health and welfare, given the proximity of the septic system to high groundwater, and the associated human health risk which could result from the transport of pathogens from the septic system to surface water, and to the wetland. Tr. at pp. 96-97. Mr. Anderson stated that the septic system was located as far as possible from the wetland, given the restrictions at the site. Tr. at p. 33. He did not, however, offer any testimony that would rebut Mr. Lorence's conclusions concerning the potential health risks associated with the installation of a septic system at this site. Under the circumstances, the record supports the conclusion that the proposal does not meet the first weighing standard, which is compatibility with public health and welfare.

The next applicable weighing standard as to which evidence was offered is whether the Applicant's proposal would minimize degradation to, or the loss of, any part of the Class II wetland or its adjacent area, and whether the proposal would minimize any adverse impacts on the functions and benefits that the wetland provides. Mr. Lorence testified that, in this case, the proposed activity would not minimize degradation to or loss of any part of the wetland or adjacent area. Tr. at p. 97. According to Mr. Lorence, the clearing proposed would destroy fifty percent of more of the adjacent area or habitat, which would have an adverse impact on open space and aesthetic appreciation. Id. Mr. Lorence testified that the clearing, as well as the proximity of the house to the wetland boundary (28 feet) would adversely affect the wildlife at the site. Tr. at pp. 97-98.

On this point, the Applicant offered the testimony of his expert, Mr. Anderson. Staff challenged Mr. Anderson's qualifications as an environmental expert, and, over objection, the ALJ allowed the testimony. Tr. at p. 50-52. Mr. Anderson pointed out that the house would be constructed on piles, that there would be limited ground disturbance, and that a catwalk, which would run close to the wetland boundary, would be built to access the house. Mr. Anderson said that he had been at the subject property on numerous occasions, and that he had not noticed many birds. Tr. at pp. 53-54. Based upon this, he concluded that the existence of the house would not have more than an insignificant impact on the birds. Tr. at p. 54. Finally, he stated that the house would be significantly smaller than other houses in the area. Id.

This testimony conflicts with that of Mr. Lorence, who stated that the filling, clearing and grading at the site, the construction of the residence, and the installation of the septic system would have significant impacts on wildlife in the area and on freshwater wetland SA-31. The weighing standard also requires an examination of the potential adverse impacts on the wetland's functions and benefits, which are closely associated with the wetland's classification. See 6 NYCRR Section 664.5(a)]. As indicated in the findings of fact, the proposed project would diminish the wetland's benefits, including wildlife habitat and soil and water quality; thus, the proposal is not compatible with preservation, protection and conservation of those benefits. The burden is on the Applicant to demonstrate that the proposal would minimize any adverse impacts on the functions and benefits that the wetland provides, and the evidence presented by the Applicant in this regard is not sufficient to meet this burden. Thus, the Applicant failed to show that his proposal would minimize potential impacts to the functions and benefits of the wetland.

Finally, the Applicant must demonstrate that the project is the only practicable alternative to accomplish the Applicant's objectives, and that there is no practicable alternative on a site that is not a freshwater wetland or adjacent area. "A proposed activity is the only practicable alternative if no other is physically or economically feasible." 6 NYCRR Section 663.5(f)(2). The regulation provides further that "this does not mean that the most profitable or least costly alternative is the only feasible one nor that the least profitable or more costly alternative is the only feasible one." Id.

Mr. DePierro testified that he was not aware of anything else that could be done with the property to realize a return on his investment. Tr. at p. 63. Mr. Anderson testified that there was no other practical alternative for the placement of the house. Tr. at pp. 54. On cross-examination, Mr. Lorence acknowledged that he was not aware of any practicable alternative. Tr. at p. 126. Mr. DePierro credibly testified that he asked a neighboring property owner to trade some land so that he could locate his septic system farther from the wetland adjacent area, but the owner refused. Tr. at p. 63. Mr. DePierro did testify that he had not explored the possibility of selling the property, possibly to an adjoining landowner. Id. In any event, the decision as to whether a permit should be granted need not turn on this question, because the Applicant has not met his burden with respect to the other weighing standards. Section 663.5(e)(2) provides that a permit cannot be issued unless the Applicant demonstrates that the proposal meets each of the weighing standards applicable to a Class II wetland. As discussed above, the Applicant has not done so here.

Finally, the regulations provide that Class II wetlands provide important benefits, the loss of which is acceptable only in very limited circumstances. Therefore, a permit shall be granted only if it is determined that the proposed activity satisfies a "pressing" economic need that "clearly outweighs" the loss of or detriment to the benefit(s) of the Class II wetland. 6 NYCRR Section 663.5(e)(2). The term "[p]ressing should suggest that for the need to outweigh the loss of or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not have to be necessary or unavoidable." 6 NYCRR Section 663.5(f)(5)(ii). The term "clearly outweighs" "means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate, although there does not have to be a large or significant margin between the need and the loss." 6 NYCRR Section 663.5(f)(5)(iii).

Mr. Lorence testified that he did not believe that the proposal satisfied a pressing economic or social need, and interpreted the regulations to provide that such a need would be satisfied by the building of a hospital or a school, but not a single family home. Tr. at p. 100. According to Mr. Lorence, the pressing social need "is not an individual home or residence but rather something that serves the community as a whole." Tr. at p. 100-101. With reference to Section 663.5(f)(3), the witness opined that there must be a showing that the project will serve "the public in general," and that the project "is not for the benefit of one individual but rather for the benefit of everyone as a whole." Tr. at p. 102. Mr. Lorence's interpretation suggests that an application for the construction of a single-family home in the adjacent area of a Class II wetland would per se fail to demonstrate a pressing social or economic need, since such a project would benefit only an individual applicant. The regulations cannot be read so narrowly. The examples cited by the witness in support of this interpretation, such as the construction of dams or levees, are, by the express language of the regulation, burdens, rather than "needs." Section 663.5(f)(3). The regulation states that such burdens should be weighed against the economic and social need for the project, whether individual or public in nature.

Prior decisions of the Commissioner have addressed factually similar circumstances. See Matter of Novack, Decision, 2001 WL 980474, *6 (July 25, 2001) (denying permit for construction of single family home in Class I wetland where applicant argued that lack of affordable housing was a "compelling social or economic need," and that applicant would move out of the area if permit were denied); Matter of Grimaldi, 2000 WL 1207730, *8 (Decision, Aug. 8, 2000) (denying permit for construction of single family dwelling in adjacent area of Class I wetland). In Matter of Grimaldi, the ALJ found that

given the dimensions of the site and the proximity to the wetland, it is not readily apparent how the applicant could design a project that would meet the regulatory requirements of Part 663. . . [Nevertheless], there was no presentation of any reason why a home must be sited here. While the applicant may believe that such construction fulfills his own compelling economic need -- there was no evidence of any compelling social economic or other public need derived from this project.

Id. The ALJ went on to note that there was no presentation regarding the Applicant's costs and reasonable expectations given the limitations of the site. Id. In Matter of Janssen, Decision, 1996 WL 368831, *12 (May 14, 1996), the Commissioner denied the application for a project located within Class I wetland and adjacent area, concluding that "to get a freshwater wetlands permit, the Applicant must show that he must build the house that it is unavoidable that he build the house, and that his need for the house outweighs the loss it would cause in a manner which is beyond serious debate."

Although these cases involved Class I wetlands, where a showing of need requires a demonstration of "actual necessity," (Section 663.5(f)(4)(ii)), they cannot be distinguished on this ground. For the Class II wetland in this case, the Applicant has failed to demonstrate an "urgent and intense" need for the project. Section 663.5(f)(5)(ii). Moreover, the loss of or detriment to the benefits of the Class II wetland must be clearly outweighed by the need for the project. 6 NYCRR Section 663.5(e)(2). Under the circumstances, the Applicant's asserted need to realize a return on his investment in the property is not sufficient to outweigh the potential for contamination, and the likelihood of adverse impacts on the wetland's functions and benefits.

Other Approvals

The Applicant cannot rely on the documentation concerning the permits granted to neighboring landowners (the Joly and Chaleff applications, Exhibits 13 and 14) as sufficient evidence to demonstrate that his proposal would meet the standards outlined at 6 NYCRR Section 663.5. The ALJ received these exhibits over Department Staff's objection. The Joly application was approved in 1988, and the Chaleff application was approved in 1995. While the Applicant argued that the precedential value of these prior approvals was significant, at the time of the Joly application, this particular wetland had not yet been mapped, and thus, would not have been subject to regulation when the Joly application was approved. It appears that the project was the subject of a non-jurisdiction letter. Here, the Applicant has not contested jurisdiction.

The Chaleff application is more recent, and while approvals granted to neighboring landowners may be helpful in evaluating a particular application, it is not sufficient to rely upon such evidence without more information concerning the nexus between the prior approval and the application under consideration. The burden is on the Applicant to establish this nexus. Here, the Applicant's witness, Mr. Anderson, who was the consultant who obtained the two prior approvals for his clients, was unquestionably the appropriate individual to speak to any similarities between the earlier projects and this application. Nevertheless, he did not offer such testimony. According to Mr. Anderson, the Chaleff property is "one lot over going north from the DePierro property, " and that it also has wetlands upon it. Tr. at p. 48. This is not compelling enough to determine that, since a permit was granted in the Chaleff matter, a permit should be granted here. Moreover, a review of the survey map provided with this exhibit suggests that the Chaleff property is at a somewhat higher elevation than the subject parcel, and that the septic system is located further from the wetland boundary than the septic system proposed by Mr. DePierro. The factual differences among these two prior approvals and this case outweigh the Applicant's arguments as to those approvals' precedential value.

Conclusions

  1. Pursuant to 6 NYCRR Section 663.5(a), the burden of proof rests entirely upon the Applicant to demonstrate that his proposal would be compatible with the applicable standards for permit issuance.
  2. The standards for permit issuance are outlined at 6 NYCRR Section 663.5(e). Based on the foregoing discussion, and the findings of fact, the Applicant did not show how the usually incompatible or incompatible activities associated with building a house, parking area, and septic system, as well as the placement of 120 cubic yards of fill, in the adjacent area of a regulated freshwater wetland would, in this instance, comply with the three-part compatibility test outlined in Section 663.5(e)(1). Finally, the Applicant failed to prove how his proposal would meet the weighing standards relevant to Class II wetlands, which are outlined in Section 663.5(e)(2).
  3. Pursuant to 6 NYCRR Section 663.5(e)(2), the loss of the benefits of a Class II wetland are acceptable only in "very limited circumstances." Section 663.5(f)(5)(i) provides further that "permits for most activities that could not avoid causing a loss of or detriment to a benefit provided by a Class II wetland would not be approved." On this record, the losses that may result if the Applicant's proposal were approved, as well as the potential for human health concerns if the septic system were installed as proposed, should not be authorized in this case.

Recommendation

Since the Applicant has not met his burden of demonstrating that his project meets the requirements set forth in Part 663 for issuance of a permit to proceed with the project in a Class II freshwater wetland and adjacent area, the Commissioner should deny the requested freshwater wetlands permit.

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