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Gans, Maryann and Henry - Decision, July 21, 1997

Decision, July 21, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

The applications for a tidal wetlands permit, a freshwater wetlands permit, placement of fill in waters permit and a water quality certification pursuant to the Environmental Conservation Law Articles 3, 8, 15, 24, 25 and 70 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MARY ANN GANS & HENRY GANS

ORDER

Application No.

1-4722-00719/5

DECISION OF THE COMMISSIONER

This is the final decision of the Commissioner with respect to the applications of Mary Ann and Henry Gans for freshwater and tidal wetlands permits and for related permits under the Environmental Conservation Law ("ECL"). Applicants seek the permits for their proposed construction of a residence with an associated septic tank system at 1 Ocean Place in the Town of Brookhaven, Suffolk County. The proposed construction activity would take place on freshwater wetlands and be adjacent to tidal wetlands.

Department Staff, determined that the applications were complete, and thereafter denied them on the ground that the project would be incompatible with the preservation and protection of the affected wetlands. Applicants requested a hearing which, upon due notice, was held in May 1997 before Administrative Law Judge ("ALJ") Francis W. Serbent.

ALJ Serbent's hearing report, attached hereto and made a part hereof, is adopted as my final decision in this matter. For the reasons stated in ALJ Serbent's report, and upon the entire record of the hearing in this matter, I conclude that the applications of Mary Ann and Henry Gans must be, and are hereby denied.

In denying these applications, I note that the Legislature's policy declaration in ECL Article 24, Freshwater Wetlands, is "to preserve, protect, and conserve freshwater wetlands and the benefits derived therefrom to prevent the despoliation and destruction of freshwater wetlands, and to regulate use and development of such wetlands to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the state." (ECL 24-0103). The Legislature's tidal wetlands policy under ECL Article 25 is comparable (ECL 25-0102).

On the record before me, and as explained by the ALJ in his report, adherence to these mandated legislative directives requires that the requested permits be denied. While the Applicants contend that the amount of overall wetlands loss would be small in comparison to the overall contiguous wetland area (0.0036% loss according to the Applicant), statistics of this nature need to be evaluated in context: Over the past four decades, many acres of Long Island's wetlands have succumbed to development. Many wetlands areas were subdivided into relatively small lots years ago. The freshwater and tidal wetlands acts, adopted in 1975 and 1973 respectively, recognized the critical environmental significance of wetland resources, and the need to regulate development in wetland areas. If a substantial part of each relatively small lot is allowed to be covered with a home and septic tank, the entire wetland and its values will soon be ruined. This eventuality is what the Legislature intended to prevent in adopting ECL Articles 24 and 25. These articles establish controls to mute the otherwise inevitable destructive effect on important wetland resources that would result if each different owner of a small lot could pursue his or her own interests without restraint. The land uses proposed by the Applicants in this case are each expressly incompatible with freshwater wetlands values under our regulations. The septic system would be in an area subject to frequent flooding. Staff explained in its letter denying the applications that the Applicants had not satisfied the weighing standards for permit issuance and applications have not come forward with information to overcome or alter the applicability of those standards.

The applications are denied.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By:John P. Cahill, Commissioner

Dated: Albany, New York
July 21, 1997

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany NY 12233-1550

In the Matter
of
the Applications for a tidal wetlands permit, a freshwater wetlands permit, placement of fill in waters permit and a water quality certification pursuant to the Environmental Conservation Law
Application Number 1-4722-00719/5
of
MARY ANN GANS and HENRY GANS
HEARING REPORT
by
Francis W Serbent
Administrative Law Judge

PROCEEDINGS

On behalf of Mary Ann Gans and Henry Gans, 9 Ocean Place, Town of Brookhaven, Suffolk County, 11719 (the "Applicants") JAC Planning Corp., 8 Bond Street, Suite 300, Great Neck, NY 11021, Jean A. Celender, president, ["Consultant"] filed an application to construct a single family residence and appurtenances [Application #1-4722-00719/5] with the New York State Department of Environmental Conservation (the "Department"). The site is at 1 Ocean Place, Brookhaven, Suffolk County and is entirely in a regulated freshwater wetland and entirely in a regulated area adjacent to a tidal wetland.

The statutes and regulations applicable to this application and these proceedings are: Environmental Conservation Law ("ECL") Article 3 (General Functions), Article 8 (Environmental Quality Review), Article 15 (Protection of Water) Article 24 (Freshwater Wetlands), Article 25 (Tidal Wetlands), Article 70 (Uniform Procedures) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 608.5 (Excavation or placement of fill in navigable waters), Section 608.9 (Water quality certifications), Part 617 (State Environmental Quality Review, "SEQR"), Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures), Part 661 (Tidal Wetlands-Land Use Regulations) and Part 663 (Freshwater Wetlands Permit Requirements) et seq.

The Applicants' Consultant initially filed an application dated July 31, 1995 for only a tidal wetlands permit and subsequently, for all other applications and finally a variance request in February 1996. Thus, on March 22, 1996, the Department's Region 1 Staff determined the application was complete and a notice of complete application could be distributed. The complete application included these required permits: tidal wetlands adjacent area, freshwater wetlands, for excavation and fill in waters pursuant to 6 NYCRR 608.5 and a water quality certification pursuant to 6 NYCRR 608.9. The Staff's SEQR determination was included in the notice of complete application and indicated the proposal is an unlisted action that would not have a significant impact on the environment.

On August 8, 1996, the Staff denied the application, with an explanation for the denial, as required by 6 NYCRR 621.9(a) in a letter to the Consultant. In response and in accordance with 6 NYCRR 621.7(a), the Consultant requested, on August 12, 1996, this hearing. The Staff forwarded the request for a hearing to the Office of Hearings and Mediation Services ["Office"] on December 24, 1996 and the request was assigned to this ALJ on December 30, 1996. The ALJ contacted the Applicants' Consultant telephonically the next day and eventually contacted the Applicants' Attorney. The Applicants and their Attorney coordinated calender dates before scheduling a hearing on March 12, 1997 through this Office. The Office prepared a notice of public hearing dated March 13, 1997 ["Notice"] that the Applicant caused to be published on April 13, 1997 as a legal notice in the Long Island Advance. This Office had the notice published in the Department's Environmental Notice Bulletin on March 26, 1997.

The Department held a pre hearing issues conference as noticed on May 2, 1997 at 9:30 AM in the Henrietta Acampora Town of Brookhaven Recreational Center, 39 Montauk Highway, in the hamlet of Blue Point. Francis W. Serbent, PE, Administrative Law Judge, ("ALJ") presided. At the pre hearing issues conference, four people presented their oral statements against the Applicants' application. No petitions were filed either in response to the Notice or at the pre hearing issues conference. The ALJ confirmed his earlier determination at the pre hearing issues conference and ruled that the Staff's explanations for their denial are the issues to be adjudicated. No one appealed the ruling. An adjudicatory hearing immediately followed. Based of the Staff's explanations for the denial, the Applicant and the Staff, the Parties as mandated by 6 NYCRR 624.4(b)(3), prepared and distributed pre filed direct testimony prior to the hearing. That testimony and evidence was examined at the hearing. Closing statements were made orally by both parties and no post hearing submittals were scheduled or required. The verbatim transcript of the proceedings, including the oral public statements, were received in this Office on May 19, 1997 and the record was closed on that date. The record includes 187 pages of hearing transcript and 26 exhibits in evidence (3 additional documents not received in evidence accompany the record). The record is hereby corrected to remedy apparent transposing or typing errors in quoting the subsections of 6 NYCRR 663.4 in the Witness Lorence's pre filed direct testimony. On page 7 of Lorence's pre filed testimony, in evidence as exhibit #19, "Activities chart" is correctly subsection (d) of 663.4 rather than (c) as typed throughout and "Clear-cutting vegetation ..." is correctly sub-subsection (23) rather than (20).

Parties

The Applicants are represented by Glen B. Gruder, Esq., of Mars, Sloane & Conlon, Esqs., 1770 Motor Parkway, Hauppauge, NY 11788. At the hearing, James McAllister, senior planner for the Applicants' Consultant, JAC Planning Corp. and Gerard J. Veitch, owner of Frederick Wood Associates, Inc., Real Estate Consultants and Appraisers, 2110 Route 112, Medford, NY 11763 testified for the Applicant.

Gail Margaret Hintz Esq., Assistant Regional Attorney in the Department's Region 1 Headquarters, Building 40, SUNY Stony Brook, NY 11790-2356 represented the Department Staff ["Staff"]. Appearing for Staff were Stephen P. Lorence, acting Regional Manager of the Bureau of Environmental Protection, Roy A. Jacobson, Jr., Biologist in the Bureau of Environmental Protection and George Stadnik, Marine Resource Specialist.

Staffs' Position

The Staff contends the Applicants' proposal fails to meet the standards for permit issuance under both ECL Article 24 (Freshwater Wetlands) and Article 25 (Tidal Wetlands). Further, the Staff claims the application does not show a pressing economic or social need that clearly outweighs the loss of or detriment to the benefits of these wetlands.

Issues

The Staff's stated explanations for denial of the applications, as detailed in their letter of August 8, 1996 to the Applicants, are the issues identified below for adjudication.

Issue #1: Does the proposal to clear, grade, construct a house, driveway and wastewater disposal ("septic") system [by bringing fill onto the lot] fail to meet the weighing standards for permit issuance in the Freshwater Wetlands Permit Requirements at 6 NYCRR 663.5(e)(2)?

Issue #2: Is the proposed septic system to be located in an area adjacent to a tidal wetland compatible with the public health and welfare according to Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.9(c)(1), "Standards for permit on adjacent areas"?

Issue #3: Would the proposal to clear, grade, build a house, driveway and septic system with fill have an adverse impact on the present and potential value of an area adjacent to a tidal wetland for wildlife habitat, flood and storm control, cleansing of the ecosystem, open space and aesthetic appreciation, all contrary to Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.9(c)(3)?

Issue #4: Does the proposed dwelling qualify for a fifty (50) foot variance from the seventy-five (75) foot setback restriction and does the septic system qualify for a thirty-five (35) foot variance from the one hundred (100) foot set back restriction as required by the Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.9(c)(2), 661.6(a) and 661.11?

Applicants' Position

The Applicants contend that it is simply ludicrous to suggest that a single family house and appurtenances as proposed on a lot of less than one quarter of an acre, would have any measurable effect on the freshwater wetland B9 of 2,500 acres. They also claim there was no evaluation and weighing of their economic and social need against the loss of wetland benefits in the review process as required since Staff automatically finds with development that there must be a decrease in wetlands benefits that outweigh economic and social needs.

Exceptions

And appraiser included a study titled "Reasonable Return Analysis". Staff objected to its being offered into evidence based on relevancy, reliability and competency. Staff notes, among other things, that the Applicants' investments are not guaranteed by the State wetland laws and the Reasonable Return Analysis does not come to the proper conclusions on marketability or whether another investment could have been made. The ALJ overruled the objection as the Applicants have the burden to put forth their case and do so at their jeopardy. The ALJ allowed the Applicants an opportunity to show how the application would comply with the wetland laws by way of the Reasonable Return Analysis in concert with the other evidence on the record. Staff took exception to the ALJ's ruling. The ALJ considered the testimony and evidence in the record concerning the "Reasonable Return Analysis" and found it immaterial.

FINDINGS OF FACT

The Lot and Vicinity

1. The Applicants own a lot at 1 Ocean Place, 150 feet east of the formerly planned Astor Avenue (not open), in the Town of Brookhaven, Suffolk County and located on tax map #0200-980-029.

The trapezoidal shaped lot fronts Ocean Place to the south and is 100 feet deep with an average width of approximately ninety four feet, for an area of 9,400 square feet, [0.215 acre].

2. The Applicants also own and now temporarily since retirement, reside in a dwelling at 9 Ocean Place, in contemplation of living in the house these permits would allow. It was formerly used on weekends and vacations and is too small to house their personal effects now temporarily in storage.

3. The Applicants' proposal is to construct a house and appurtenances on the lot that is both a freshwater wetland and in an adjacent area to tidal wetlands. Staff calculates that the proposed house and appurtenances would eliminate, after clear-cutting the existing vegetation, a minimum of four thousand (4,000) square feet ("sf"), or approximately 42%, of freshwater wetlands and tidal wetlands adjacent area from the nine thousand four hundred (9,400) sf lot.

4. The Applicants' lot is entirely within designated freshwater wetland B-9 on the Bellport Quadrangle Map as finalized on May 26, 1993. The Freshwater Wetlands Act ECL 24-0701.1 requires, among other things, a permit for any form of filling or depositing of any soil, erecting any structures, roads, any form of pollution, including but not limited to, installing a septic tank, discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland.

5. The freshwater wetland is classified as Class II in accordance to 6 NYCRR Part 664. Class II standards for issuance of freshwater wetlands permits are at 6 NYCRR 663.5(e)(2) for activities designated P(X). 6 NYCRR 663.4(d) designates the proposed house construction at item #42, filling for the septic system at item #20, clear-cutting vegetation at item #23 and introducing sewage effluent or other pollutants at item #38 all as P(X) activities.

6. The lot is adjacent to the tidal wetlands shown on Tidal Wetland Map #676-512 finalized on August 20, 1977. The Tidal Wetlands Act ECL 25-0401.1 requires, among other things, a permit for any form of filling or depositing, fill of any kind, the erection of structures or roads, and any other activity immediately adjacent to inventoried wetlands which may substantially impair or alter the natural condition of the tidal wetland area.

7. The lot is entirely in a regulated adjacent area as defined in the Tidal Wetlands - Land Use Regulations 6 NYCRR 661.4(b). In December 1995, high tide came to approximately 58 feet ("ft") south of the Applicants' southeast property line corner and to approximately 45 feet on April 8 1997.

8. The nearest tidal wetlands to the north and east of the lot are categorized as high marsh ("HM") in conformance with the use guidelines 6 NYCRR 661.5. The nearest tidal wetland to the south is the Great South Bay, locally also called Bellport Bay, and is categorized as coastal shoals, bars and flats("SM") by the use guidelines noted above. The standards for issuance of permits in adjacent areas are at 6 NYCRR 661.9(c).

9. The existing wetland plants in the area for the proposed house and appurtenances are the designated high marsh tidal wetland species marsh elder and groundsel tree with an understory of salt meadow grass. The Applicants' lot, if left undisturbed, would likely become a high meadow tidal wetland due to regular flooding by certain tides and breaches in the barrier islands that result in high seas that promote landward migration of tidal wetlands.

10. There are existing seasonal dwellings at 9, 15 and 17 Ocean Place west of the Applicants' lot on lots nominally sized as 50 by 100 feet.

The House and Area

11. The Applicants' propose to construct a two story single unit dwelling in a foot print of thirty-two feet by fifty feet [32 by 50]. With the second story of the same size, the total building floor area would be thirty two hundred (3,200) square feet. The northeast corner of the house would be 25 ft from the tidal wetland, the northwest corner of the house would be 30 ft from a tidal wetland and the south side of the house would be 91 ft from the latest measurement to the tidal wetland Bellport Bay. The required setback is one hundred (100) ft. according to 6 NYCRR 661.6(a)(1).

12. To prevent surface soil erosion, a gravel driveway would be constructed to percolate storm water runoff. The 10 foot wide driveway would be a 130 foot extension of Ocean Place and built to local road construction criteria.

13. The Applicants would build a gravel parking area 20 by 27 feet on their lot.

14. Rain water from the roof and house gutters would drain to two 12 foot diameter dry wells piped in series and located in the fill behind the retaining wall that encloses the septic system.

15. The Applicants' lot floods annually so the Applicant would build the house above grade on piles to allow flood waters relatively unobstructed passage underneath and to apparently satisfy federal requirements. The minimum first floor elevation would be at elevation 11.0 feet above mean sea level and approximately 7 feet above the existing ground surface. The proposal is based on a one hundred year storm [e.g. a 1% chance of being equaled or exceeded in any year or a 40% chance in any 50 year period], a still water elevation of 9.7 feet and the maximum wave crest at 15 feet.

The Sewage Disposal System

16. The sewage disposal system would consist of a septic tank and seepage rings in 325 cubic yards of fill material. The filling, clear-cutting vegetation and the construction and introduction of sewage effluent into a wetland are each identified activities required to meet the weighing standards for permit issuance prescribed in 6 NYCRR 663.5(e)(2).

17. The volume on the Applicants' lot that would be occupied by the 325 cubic yards of fill for the septic system and roof drain system would not be available for flood or storm water control. The fill would also reduce the area's function as a buffer to the tidal wetlands. The fill would also reduce the wildlife habitat and would no longer provide for erosion control both by the loss of water storage volume and by the loss of plant growths that slow the flow.

18. The existing grade in the vicinity of the proposed seepage rings varies from elevation 2.9 ft to 3.9 ft. The Applicant would raise the existing ground surface to between elevation 7.5 ft and ft to build the sewage disposal system and the roof drain system. The 325 cubic yards of sand fill would be placed behind a retaining wall to enclose the entire septic and roof drain systems area of 2000sf. The wall would be construction two feet from the southerly property line nearest to the waters of Great South Bay. The sewage seepage rings would be a minimum of ten (10 ft) feet horizontally within the wall. The details and elevations of the septic tank are unknown but it would, conceptually as proposed, receive sewage from the dwelling and discharge effluent to the sewage seepage rings.

19. The bottom of the seepage rings for the sewage disposal system would be at elevation 3.7 ft., local datum.

20. The seepage rings would be 68 ft. from high tide water to the south in Great South Bay as observed in December 1995 and 55 ft. in April 1996. The next nearest tidal wetlands are 67 ft to the north of the septic system.

21. Any sewage disposal system on the Applicants' lot would be entirely within the "freshwater wetland/tidal wetland adjacent area" and would not function as intended. The septic system liquids discharging directly or leaching into groundwater and/or surface waters would: 1) cause or contribute to the degradation of the quality of the water used for harvesting shellfish; 2) cause or contribute to increased algae blooms that further degrade water quality by reducing the concentrations of dissolved oxygen needed for fish life; 3) create or increase turbidity that limits the sun light needed by clams and other marine life and that clogs gills used for feeding.

22. The entire lot was under two to six or more inches of standing water on April 17, 1996 and on April 8 1997 there was an estimated two inch depth of water in the vicinity of the proposed septic system. Flooded sewage disposal systems pose an additional risk to public health as pathogenic bacteria, viruses and the nutrients would discharge directly or leach into the surface waters of the freshwater wetlands and through the adjacent areas to tidal wetlands, including Bellport Bay.

23. The waters of Great South Bay are classified SA with a best usages that include shell fishing for market purposes according to 6 NYCRR 701.10. In the Bellport Bay area of Great South Bay, shellfish beds are closed conditionally every summer because of poor water quality due to human waste contamination especially after rain.

CONCLUSIONS

Conclusion #1: The Applicants' proposal to clear-cut vegetation, build a house and appurtenances, including the use of a septic system discharging on site in a freshwater wetland would not be compatible with the public health and welfare, is not the only practicable alternative, does not minimize the loss of freshwater wetlands and adverse impacts on wetlands functions and benefits according to Freshwater Wetlands Permit Requirements at 6 NYCRR 663.5(e)(2).

Discussion: 6 NYCRR 663.5(e)Standards for Permit issuance mandates, among other things, that: "(2) These weighing standards must be applied to all activities identified as P(X) in section 663.4(d) of this part, ..." The proposed house, clear-cutting of vegetation, filling for the septic system and the functioning of the septic system are all P(X) activities. The weighing standards for permits in wetland class II, among others, are: "The proposed activity must 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 that the wetland provides." plus "The proposed activity must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objective and have no practicable alternative on a site that is not a freshwater wetland or adjacent area."

The clear-cutting of vegetation for and the construction of: 1) the proposed house with a footprint of 1600 sf, 2) the proposed septic system with a footprint of approximately 2000sf and 3) the proposed parking area of 540sf would destroy approximately 42% of the existing freshwater wetland covering the entire lot of 9400sf. The freshwater wetland functions and benefits of storage capacity for flood and storm control (e.g. in the volume that would be filled); wild life habitat within the footprints; recreation such as hunting and hiking; and erosion control by the filtering effect of vegetation all as described at ECL 24-0105.7, would be lost. Although the Applicants' lot is a small fraction of the entire wetlands system of freshwater wetlands, tidal wetlands and their adjacent areas, the application is for an alteration on a 9400sf lot, not the entire wetland system. Consequently, the evaluation of environmental impacts is on the basis of both the 9400sf lot of freshwater wetland and then the entire wetlands system. I must conclude that there would be a total loss of 42% of the freshwater wetlands. I must conclude there would be an unmitigated loss of associated wetland functions and benefits of the lost freshwater wetlands on the Applicants' lot. This loss would not be compatible with the public health and welfare as the proposal would have a nibbling effect on the reduction of the entire wetland, its functions and benefits.

The proposed septic system, as also noted below at Conclusion #2, is both substandard in design and inappropriately located and would malfunction routinely and again when flooded [at least yearly]. The consequences of a substandard designed septic system certainly would not function as intended and the unintended discharges of improperly treated sewage would threaten the public health and welfare. Flooding the septic system would increase the threat to the public health and welfare.

The Applicants have not demonstrated that their proposed activity at 1 Ocean Place is the only practicable alternative to meet their objective of a retirement home with no alternative on a lot that is not a freshwater wetland or adjacent area. The Applicants do own an existing habitable dwelling at 9 Ocean Place. That portion of the Applicants' objective of a dwelling place is currently accomplished by living in their existing dwelling. Although their existing dwelling is too small for their belongings currently in storage, there is nothing in the record that would show an expansion is not a practicable alternative that would meet the Applicants' objective.

Conclusion #2: The proposed wastewater disposal (septic) system would be located in an area adjacent to a tidal wetland and does not meet the standard for being compatible with the public health and welfare according to Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.9(c)(1) Standards for Permit on adjacent areas.

Discussion: The cited regulation mandates that: "The Department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed regulated activity: (1) is compatible with the public health and welfare: ..."

As noted above, the ALJ found that for freshwater wetlands, the proposal would not meet the freshwater wetland standard for compatibility with public health and welfare. Here, since the tidal wetlands adjacent area is a freshwater wetlands, the adjacent area provides the same functions, benefits and values as a tidal wetland for cleansing ecosystems and erosion control by absorbing silt and organic material from the water, storm and flood control by slowing and storing water and preserve wildlife habitat by being undeveloped. The adjacent area function as a buffer to the tidal wetlands would be lost. The loss of these tidal wetland values are not compatible with the public health and welfare.

Further, the proposed septic system does not meet the requirements of the Tidal Wetlands - Land Use Regulations 6 NYCRR 661.6(a)(3) that mandates: "For any on-site sewage disposal cesspool, septic tank, leach field or seepage pit, there shall be a minimum of two feet of soil between the bottom of such pool, tank, field or pit and the seasonal high ground water level, rock hardpan, or other impermeable materials." (Emphasis added) The bottom of the septic system seepage rings are designed to be set 4 inches below flood levels observed at the location of the septic system. The Applicants' entire lot floods annually and there would not be the required vertical separation to seasonally high ground water table. A flooded septic system can not function as intended when the discharges enter directly into groundwater or surface waters. A septic system so designed and operated would spoil and destroy the tidal wetland values in the adjacent area of the Applicants' lot and the related tidal wetlands. The despoliation and destruction would not be compatible with the policy to preserve and protect tidal wetlands for the public health and welfare.

Conclusion #3: The Applicants' proposal to clear-cut vegetation, build a house and appurtenances, and to build and use a septic system discharging on site would have an undue adverse impact on the present and potential value of an area adjacent to a tidal wetland for wildlife habitat, flood and storm control, cleansing of the ecosystem, open space and aesthetic appreciation contrary to Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.9(c)(3).

Discussion: 6 NYCRR 661.9 mandates: "(c) Standards for permits on adjacent areas. The Department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed activity: ...

(3) will not have an undue adverse impact on the present or potential value of any adjacent or nearby tidal wetland 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, taking into account the social and economic benefits which may be derived from the proposed activity..."

The standard for permit issuance in an adjacent area relies on the determination that the permitted activity would not have an undue adverse impact on any adjacent or nearby wetland value not only now but also potentially in the future.

Present wetland values

The present and potential wetland values expected to be subject to undue adverse impacts are: lost marine food production from septic system effluents reaching the wetlands and reducing dissolved oxygen levels needed for fish life, creating turbidity that would mask light needed by clams and other marine life and by clogging gills used for feeding; lost wildlife habitat, especially species shy of human activity, in the 42% of the lot that would be clear-cut of vegetation for the house construction, appurtenances and the filling for the construction and discharges of the septic system; lost storm and flood control by not slowing and storing water due to clear-cutting vegetation and fill displacing storage volume; lost cleansing and absorption due to clear cutting of vegetation, filling and surface discharges from the septic system when flooded; lost open space and aesthetic appreciation by the appearance of seepage to the surface of septic discharges due to flooding at least once every year. Also the present value of this wetland for aesthetic appreciation of continuous open space would be abruptly interrupted by the presence of the Applicants' house. It would be the first man made edifice fronting the Great South Bay to the south and to open space to the east and north. Even to the west there are other undeveloped lots before the first house.

Potential wetland values

Permitting the Applicants' proposal would be expected to spur future development. The cumulative effect of development in the future would destroy the value of open space and aesthetic appreciation potential of the wetlands by cluttering the available space with man made edifices within the open space views.

Future development would severely and unduly impact potential wetland values for wildlife habitat with physical displacement by each construction, each above grade structure and very importantly, with the human presence both in the adjacent area to the tidal wetlands and in the freshwater wetlands.

Existing shoreline developments about Bellport Bay have resulted in high coliform bacteria counts in the waters, with sewage disposal system discharges a major source of coliform bacteria. Under these circumstances the sewage overflows and other contaminant loads from future developments would diminish the potential wetland value by impairing the wetland's ability to cleanse the ecosystem, would contribute or cause the degradation of water quality with the consequential closing of shellfish beds. Further, even with proper functioning of sewage disposal systems along the shoreline, the effluent from each would increase nutrient loadings into the wetlands. These nutrients would fertilize plant and algal growths in the water with concomitant oxygen demands while growing and then again exert an oxygen demand in decay. Off season, vegetation would release nutrients adding to the current effluent nutrient load in the water and thus further aiding algal growth. The algal demand on dissolved oxygen reasonably has the potential to completely deplete the oxygen needed for marine food production, another identified wetland value.

Conclusion #4: The proposed dwelling would require a fifty (50) foot variance from the seventy-five (75) foot setback restriction and the septic system would require a thirty-five (35) foot variance from the one hundred (100) foot set back restriction, both contrary to Tidal Wetlands - Land Use Regulations at 6 NYCRR 661.6(a)(1), Development restrictions [setbacks], and contrary to 6 NYCRR 661.11, variances. Neither the variance for the house or the septic system meet the requirements of 6 NYCRR 661.11(a) and must be denied.

Discussion: The Applicant needs a tidal wetland variance under 6 NYCRR 661.11(a) from the development restrictions in 6 NYCRR 661.6 to meet the standards for permits on tidal wetland adjacent areas under 6 NYCRR 661.9(c)(2). 6 NYCRR 661.11 gives the Department the authority to change the setbacks provisions if the new setback essentially, among other things, meets the spirit and intent of the original setback, that public safety and welfare are secure and there would be no undue adverse impact on the any tidal wetland.

The proposed house, located as requested in the variance, would have the undue adverse impacts on the tidal wetland values both in the adjacent area and in the tidal wetlands as discussed under Conclusion #3 above.

Since the proposed septic tank system would not meet the standards for permits in adjacent areas under 6 NYCRR 661.9(c)(2) as noted above in Conclusions 2 & 3, a variance is not realistic or possible. The proposed sewage disposal system, would be expected to have the same undue adverse impacts on the wetland values.

RECOMMENDATION

1. The permitting of the Applicants' house, appurtenances, including the proposed sewage disposal system, is not compatible with either the preservation, protection or enhancement of the present and potential values of the freshwater wetlands and adjacent areas to tidal wetlands. The applications as applied for and the variances requested should be denied with the explanations as provided in the conclusions above.

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