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Goldsmith, Stuart - Decision, March 16, 2001

Decision, March 16, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

-of-

the application for a tidal wetlands permit,
use and protection of water permit, and water quality certificate pursuant to
the Environmental Conservation Law (ECL) Articles 15 and 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 608 and 661

by

STUART GOLDSMITH

PERMIT APPLICATION No. 1-4722-01400/0005

DECISION

March 16, 2001

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judges Susan J. DuBois and Molly T. McBride in the matter of the application of Stuart Goldsmith to conduct maintenance dredging in the Village of East Patchogue, Town of Brookhaven Suffolk County, is hereby adopted as the Decision in this matter.

As indicated in the hearing report, the site conditions remain the same today as when the tidal wetlands permit was first issued in 1989. Additionally, as the ALJ's found, the project meets all of the standards necessary for issuance of the tidal wetlands permit, protection of waters permit and water quality certification.

Accordingly, the permit application is granted.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Gavin J. Donohue
Acting Commissioner
Albany, New York

Dated: March 16, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

-of-

the application for a tidal wetlands permit, use and protection of water permit,
and water quality certificate pursuant to the Environmental Conservation Law (ECL)
Articles 15 and 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York 6 NYCRR) Parts 608 and 661 by

STUART GOLDSMITH

PERMIT APPLICATION No. 1-4722-01400/0005

HEARING REPORT

PROCEEDINGS

An application for permits from the New York State Department of Environmental Conservation ("the Department") was made by Stuart Goldsmith, 8 Salt Meadow Road Brookhaven, New York ("the Applicant"), for the reissuance of a tidal wetlands permit, protection of waters permit and water quality certification which were in effect from 1989 to 1999. The Applicant seeks to conduct maintenance dredging of an area 10 feet by 460 feet located seaward of an existing functional bulkhead, and a 300 square foot triangular area located at the westernmost limit of the bulkhead, to a depth of 3 feet below mean low water. 50 to 100 cubic yards of spoil would be removed from the waterway and deposited landward of the existing bulkhead. The proposed project is located on the Great South Bay, in the Village of East Patchogue, Town of Brookhaven, County of Suffolk, in the area immediately in front of the Applicant's 8 Salt Meadow Road property and proceeding 460 feet in a westerly direction, seaward of the existing bulkhead. (See attached map marked as Exhibit A)

The maintenance dredging requires a tidal wetlands permit pursuant to ECL Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), a protection of waters permit pursuant to ECL Article 15, Title 5 and 6 NYCRR Part 608 and a water quality certification pursuant to 6 NYCRR 608.9. The United States Army Corps of Engineers ("the Corps") and the Town of Brookhaven approved the reissuance of the permits.

Pursuant to ECL Article 8 (State Environmental Quality Review Act, "SEQRA") and 6 NYCRR Part 617, the Department Staff determined that the proposed project is a Type II action (§617.5(c)(1), maintenance of an existing facility) and consequently no further environmental review is required under SEQRA (i.e. an environmental impact statement).

The application is for a renewal(1) of the permits that were issued on November 8, 1989 and expired on October 31, 1999. The Applicant first applied for the renewal on December 16, 1998, more than 10 months before the existing permits expired.

In 1978 the Applicant received permits for maintenance dredging at the site from the Corps and the Town of Brookhaven. The Department also approved the project by letter dated February 27, 1978 and entitled "Tidal Wetlands Notification Letter Approval". The letter read, in part, that it would not be necessary for the Applicant to apply for a permit from the Department for the maintenance dredging proposed in the Applicant's correspondence of January 24, 1978. The Department indicated that the Applicant could proceed with the maintenance dredging of 50 to 100 cubic yards of material from in front of the bulkhead to a depth of 3 feet below mean low water. The expiration date of the approval was December 31, 1988.

The Applicant applied to the Corps, the Town of Brookhaven and the Department for the renewal of the maintenance dredging permits in the winter of 1988-1989. Both the Corps and the Town of Brookhaven granted renewals of the permits. The Department denied the application and a hearing was held before Administrative Law Judge Susan J. DuBois on July 12, 1989 and August 12, 1989. The Department's 1989 denial was based on its position that the maintenance dredging was not necessary to accomplish the goals stated by the Applicant in the application, "... to prevent buildup of seaweed, thereby eliminating the nauseous odor of the decomposing seaweed, and to permit boating access." The Department took the position that the primary purpose for the dredging was to remove the seaweed as that was the first reason stated on the application. The Applicant denied this at the hearing and stated that the primary purpose of the maintenance dredging was to remove the buildup of sand that prevents boating access in front of the bulkheaded area.

ALJ DuBois issued a Hearing Report that was adopted by Commissioner Thomas C. Jorling in a decision dated October 18, 1989. That decision directed that the tidal wetlands and protection of waters permits and water quality certification be issued. The term of the permits was 10 years. The Hearing Report concluded that the maintenance dredging would allow continuation of the environmental conditions which have existed at the site since the bulkhead was constructed, and would not diminish the existing environmental value of the wetland.

During the current permitting process, the Applicant's representative met with the Department staff. The application, as initially submitted, sought to dredge an area 50 feet by 460 feet. This was the maintenance dredging area allowed from 1978 until 1988. After a meeting between Staff and the Applicant's representative, the Applicant amended the application to decrease the dredging site to 10 feet by 460 feet. This revised dredging area is the same dredging area permitted in 1989. The Applicant and his representative indicated that they reduced the size of the dredging area believing that since the permits were issued in 1989 for that project, they would be issued again. Department staff denied the application.

A Notice of Hearing and Complete Application was published on August 31, 2000 in the Long Island Advance and on August 23, 2000 in the Department's Environmental Notice Bulletin.

The hearing began on October 2, 2000 at the Village of Patchogue Village Hall, 14 Baker Street Patchogue, New York before Administrative Law Judges ("ALJ") Susan J. DuBois and Molly T. McBride. The Applicant was represented by Cahn, Wishod & Knauer, Melville, New York, Eugene L. Wishod and Brian T. Egan, Esq., of counsel. The Department was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region One, Stony Brook, New York. The legislative hearing was convened first. No persons came forward to speak on the project. The Applicant's attorney presented a letter from a citizen who wished to comment favorably on the project. The letter was accepted as part of the legislative hearing record. At the conclusion of the legislative hearing, an issues conference was convened. No other persons, agencies or organizations participated in the hearing process as parties or sought party status.

At the conclusion of the issues conference, the adjudicatory hearing was commenced on October 2, 2000. The adjudicatory hearing continued before the ALJs on October 3, 2000 and October 10, 2000 at the American Legion Hall, Baker Street, Patchogue, New York.

The following witnesses testified on behalf of the Applicant: Stuart Goldsmith, William Costanza, who conducted the dredging for the Applicant and Charles Bowman, environmental consultant retained by the Applicant. The following witnesses testified on behalf of the Department: George Stadnik, DEC Marine Resource Specialist I and Pamela Lynch, DEC Marine Resource Specialist.

The parties submitted post-hearing briefs on or about November 30, 2000 and the hearing record closed on November 30, 2000 upon receipt of the briefs.

POSITION OF THE PARTIES

Applicant

The Applicant argued that the requested dredging permit is merely a reissuance of a permit to continue dredging that has been ongoing in excess of 30 years. It is the Applicant's position that the dredging is necessary to maintain boating access that he has enjoyed from his property since his ownership of the property began in the 1960's. The Applicant rejects the alternatives to the requested dredging that have been proposed by Staff. Applicant claims that they will not meet his needs.

Department

The Department contends that the Applicant has not met the burden of demonstrating that the dredging project meets the standards for tidal wetlands issuance, nor the standards for issuance of a protection of waters permit or a water quality certification. The Department contends that if the application is denied, and no more dredging occurs at this site, the area will become a functioning tidal wetland that will benefit those living on and using the Great South Bay.

ISSUES FOR ADJUDICATION

The Applicant proposed eight issues for adjudication and Staff proposed three issues for adjudication. At the close of the issues conference, ALJ DuBois ruled that the following issues required adjudication:

  1. The change of record ownership to the center and western lots along the bulkhead is not a relevant factor in determining whether the Applicant is entitled to reissuance of the dredging permit in light of the Stipulation of Settlement(2), the recorded Correction Deeds and the recorded Dredging Agreement.
  2. Since the issuance of the prior permit in 1989, there have been no changes in the permitted activity, environmental conditions at the site, or applicable law and regulations.
  3. Between November 8, 1989 and June 16, 2000 there have been no discernable or measurable environmental, biological or other changes in the area covered by the application.
  4. Granting the application will not have any greater adverse impacts upon wildlife habitat, marine food production and buffering of the upland from severe wave action than any adverse impact that resulted from the maintenance dredging engaged in by the Applicant between November 8, 1989 and October 29, 1999.
  5. Granting of the application will not have any greater adverse impacts on the present or potential value of the tidal wetlands than any adverse impacts that resulted from the maintenance dredging engaged in by the Applicant between November 8, 1989 and October 29, 1999.
  6. The alternatives suggested in the June 16, 2000 Notice of Permit Denial do not constitute proper nor reasonable alternatives to the granting of the application.
  7. The proposed project does not meet the standards for issuance of a tidal wetlands permit specified in 6 NYCRR 661.9(b)(1)(ii), (iii) and (v).
  8. The proposed project does not meet the standards for issuance of a protection of waters permit specified in 6 NYCRR 608.8(a),(b), and (c).
  9. The proposed project does not meet the standards for issuance of a water quality certification pursuant to 6 NYCRR 608.9(a)(1) and (6).

FINDINGS OF FACT

  1. Stuart Goldsmith, the Applicant, 8 Salt Meadow Road East Patchogue, New York applied for a tidal wetlands and protection of waters permit and water quality certification for maintenance dredging of an area 10 feet by 460 feet located seaward of an existing functional bulkhead and a 300 square feet triangular area located at the western most limit of the bulkhead, to a depth of 3 feet below mean low water. 50 to 100 cubic yards of spoil would be removed from the waterway and deposited landward of the existing bulkhead, on the Applicant's property. The proposed project is located on the Great South Bay, in the Village of East Patchogue, Town of Brookhaven, County of Suffolk.
  2. The bulkhead is in front of three separate parcels. (See Exhibit A) The Applicant formerly owned the 3 parcels that border the bulkhead. In June, 1990 he sold the west parcel and in November, 1990 he sold the center parcel. The new parcel owners, Patricia Knapp (western) and William & Jane Knapp (center) have entered into dredging agreements with the Applicant, allowing for the continuation of the maintenance dredging along the length of the bulkhead and said agreement has been incorporated into an order of the Supreme Court of the State of New York, Suffolk County. Additionally, correcting deeds for the two parcels have been filed that reflect the dredging agreement.
  3. The type of maintenance dredging used by the Applicant has been described by the Applicant and the contractor who does the dredging, as removing sand that has accumulated over the winter months in front of the western most portion of the bulkhead. If the sand that builds up along the western end of the bulkhead is not dredged in the spring time, the easterly winds that are common in the Great South Bay will, in most years, cause the sand to spread across the bulkhead. This spread will eventually disrupt boating access at the Applicant's property. This sand accumulation has not warranted the dredging every year.
  4. When the sand is removed in the spring in front of the westernmost portion of the bulkhead, before it has spread easterly, the amount of dredged material required to be removed is decreased. Without dredging, the area seaward of the bulkhead would reach a depth of one foot or less.
  5. During a dispute with his neighboring parcel owners during the term of the previous permits, the Applicant was limited to maintenance dredging in front of his parcel only.
  6. During the period of time that the Applicant was unable to dredge the entire length of the bulkhead in the 1990's, sand accumulated in front of the bulkhead at the western most portions and spread across the length of the bulkhead, resulting in a buildup of sand in front of the entire bulkhead.
  7. The Applicant constructed davits on the beachhead ofhis parcel after the issuance of the 1989 permit. The davits are used to raise and lower the boat purchased by the Applicant after the 1989 permit was issued by the Department. The Applicant was not a boat owner at the time of the 1989 hearing.
  8. The area to be dredged is designated as "SM" (coastal shoals, bars and mudflats) and "LZ" (littoral zone) on the Department's Tidal Wetland Map. The environmental conditions in existence at the site in September, 2000 are almost identical to those that were present in 1989.
  9. The bulkhead prevents the area from naturally restoring itself. The wave action that is common in the Great South Bay interacts with the face of the bulkhead and scours the floor of the Bay in an area just seaward and out approximately 10 feet from the bulkhead. This wave energy picks up sand, silt and organisms and interferes with the production of marine food in that area. Although the dredging has been stopped since the application was denied by the Department in 1999, the area in question has not begun to restore itself.
  10. Samples of accreted material were taken at the time of the hearing. These samples, taken seaward of the bulkhead, to a depth of 2-6 inches and from 10 feet to 200 feet seaward of the bulkhead, were predominantly coarse sand and gravel with some medium sand.
  11. There has been no changes in the applicable sections of the ECL or 6 NYCRR since the permits were issued in 1989. The Long Island South Shore Estuary Reserve Act was enacted in 1993. (Executive Law of New York, Article 46). This Act does address the Great South Bay East. However, this Act and its implementing section in the ECL, ECL 54-1303, do not specifically address the issues herein.
  12. If the maintenance dredging requested in the application was to be carried out as it has been, there would be no change in the conditions at the site. If the dredging is not allowed, there would be little or no change in the conditions at the site due to the bulkhead. The area will become more shallow in front of the center and western parcels but the bulkhead, and the wave action natural to the Great South Bay, will work to prevent the restoration of the area for several feet seaward of the bulkhead. The scouring wave action precludes the restoration of this area. The material accreted at the site is coarse sand and gravel with some medium sand. There was not sufficient evidence presented that the area has a present or potential value for marine food production or a wildlife habitat.
  13. The Department proposed four alternatives to the maintenance dredging: construct a seasonal dock; construct a low profile groin at the western property line that would prevent the spread of sand; dredge an area 10 feet by 165 feet directly seaward of the parcel owned by the Applicant; dredge an area 20 feet wide at the bulkhead in the area of the existing davits at the Applicant's parcel, extending 50 feet wide and 20 feet seaward of the bulkhead. None of the alternatives proposed would meet the goal of maintaining boating access from the Applicant's parcel.
  14. The first proposal (seasonal dock) is a costly alternative. It would have to be placed in the water and removed each year. Such a dock would also fail to protect a boat from the wave action that is common in the Great South Bay. The Applicant has davits on his property that serve to remove the boat from the Bay and protect it from the potentially damaging wave action. The Department proposes that this alternative would prevent the need for the requested maintenance dredging but, gives no explanation as to how.
  15. The next three proposals would not provide protection from the spread of sand from the western end of the bulkhead that the maintenance dredging provides. Also, these proposals would not provide the boating access that the requested dredging would provide. The second proposal (low profile groin) would most likely not be approved by the Town of Brookhaven nor the Corps and both approvals are needed. Also, the spread of sand would only be temporarily stopped by such a groin. Eventually the sand would reach the top of the groin and be washed over onto the other side. Should this occur during the boating season, but after the time during which dredging is permitted, (October - May) the Applicant would lose boating access for the season. Dredging is prohibited each year from June 1st through September 30th to protect spawning shellfish. The third alternative (dredge site 10 x 165) would also provide only a temporary protection. The sand would be removed in the dredged area but would build up on the western boundary and wash over into the dredged area impeding boating access. Again, this washing over of sand could happen during the boating season, after dredging had occurred. The options would be either to wait until the next year to dredge again and lose the remainder of that year's boating access or dredge again that season, if allowed. This second dredging would also be costly. The final alternative (dredge site 50 x 20) would also serve the same function, to provide a temporary protection with the same potential for problems.
  16. The maintenance dredging allowed by the Department, the Corps and the Town of Brookhaven since 1978 has shown to provide the necessary boating access and allow for the continuation of that access throughout an entire season.

CONCLUSIONS OF LAW

  1. 6 NYCRR 624.9(b)(3) states: "Where an application is made for permit renewal, the permittee has the burden of proof to demonstrate that the permitted activity is in compliance with all applicable laws and regulations administered by the department. A demonstration by the permittee that there is no change in permitted activity, environmental conditions or applicable laws and regulations constitutes a prima facie case for the permittee."
  2. This permit application is for a renewal of the permits that were issued on November 8, 1989 and expired on October 31, 1999. The Applicant first applied for the renewal on December 16, 1998, more than 10 months before the existing permits expired. The Applicant's request meets the definition of a renewal.
  3. The Applicant has demonstrated that there has been no change in the permitted activity. The maintenance dredging proposed in the application is the same dredging that has been ongoing for at least 30 years. There is no dispute that the Applicant seeks to continue this same maintenance dredging.
  4. The environmental conditions at the site have not changed since the permit was issued in 1989. Both the Department and the Applicant agree that there has been no change in the applicable laws or regulations. The Long Island South Shore Estuary Reserve Act was enacted in 1993 (Executive Law of New York, Article 46). Although this act does address the Great South Bay East, which is where the Applicant's property is located, it has not resulted in a change in the laws and regulations applicable herein. Therefore, the Applicant has made a prima facie case for permit renewal.
  5. 6 NYCRR 661.9(b) identifies the standards for a tidal wetlands permit to be issued. In summary, the applicable parts require a showing that the permitted activity will preserve and protect tidal wetlands, prevent the despoliation and destruction of wetlands, not have an undue adverse impact on the present or potential value of the wetlands for marine food production, wildlife habitat and flood and hurricane and storm control. Here it has been shown that the area in question supports no marine food production and is not a wildlife habitat and as a result of the bulkhead in place, there will not be significant marine food production and there will not be a wildlife habitat created if the requested dredging is stopped. The dredging has not been alleged to have any effect on storm control except for a possible assistance with such storm control if the area restores itself. The record does not support a conclusion that the area at issue will restore itself if the maintenance dredging requested is denied. The bulkhead is the key factor in the disruption of the marine food production and restoration of this area.
  6. Standards for issuance of a water quality certification are found at 6 NYCRR 608.9 and the protection of waters permit issuance standards are found at 6 NYCRR 608.8. The record supports a finding that the project is reasonable and necessary and will not endanger the health, safety or welfare of the people of the State. Also, as stated herein, there is no basis to find that this continuance of maintenance dredging will cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State.
  7. 6 NYCRR 608.9 requires an examination into the water quality standards. (See, also 6 NYCRR 754.1) This project will have no adverse effect on water quality and whatever turbidity(3) that may occur from the maintenance dredging, would be of a limited duration. Staff stated that the issuance of a tidal wetlands permit to dredge in the littoral zone, in effect, subsumes the water quality issue. (Department Closing Statement and Brief, page 3) The fact that this project was previously permitted by Staff carries the strong presumption that water quality standards will not be adversely affected. The evidence presented indicates that the wave action off the face of the bulkhead is a source of turbidity. The maintenance dredging in and of itself was not said to exacerbate the naturally occurring turbidity. I conclude the maintenance dredging will not contravene 6 NYCRR 754.
  8. A renewal of the permit for maintenance dredging would not have an undue adverse effect on the present or potential value of the wetlands. The testimony at the hearing and the evidence presented established that the area has remained the same environmentally when no dredging has occurred over an extended time period.
  9. The alternatives proposed by the Department would not afford the same protection for boating access as the requested maintenance dredging. It appears unlikely that the one of the alternatives, construction of a groin, would be allowed by the governmental authorities which regulate such activity.
  10. The Applicant has demonstrated that the standards for issuance of a tidal wetlands permit, protection of waters permit and water quality certification have been met.

RECOMMENDATION

I recommend that the application be approved and that the requested permits and water quality certificate be issued.

_____________/s/_____________
Susan J. DuBois and Molly T. McBride
Administrative Law Judges

1 Renewal is defined as "... the reissuance, recertification or extension of any permit for previously approved activities which will be continuing on the same site without material change." 6 NYCRR 621.1(t).

2 The Applicant sold two of the three parcels of land that bordered the bulkhead, after the issuance of the 1989 dredging permits. After the sale of the property, the Applicant and the new owners had a dispute regarding the maintenance dredging. That dispute was resolved by the parties entering into a Stipulation of settlement that allowed the Applicant to resume maintenance dredging in front of all three parcels. That Stipulation of Settlement was incorporated into an order of the New York State Supreme Court and the parties executed a dredging agreement and correcting deeds that reflect the dredging agreement.

3 Turbidity is the cloudy appearance in naturally clear water caused by the suspension of fine solids or colloidal droplets.

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