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Hansen, David - Order, January 3, 2000

Order, January 3, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 15 and 25 of the Environmental Conservation Law of
the State of New York and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

DAVID E. HANSEN,

Respondent.

ORDER

DEC No. R1-6098-98-06

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint written and served by the Region 1 Staff of the Department of Environmental Conservation ("Staff"), an administrative enforcement hearing for the Respondent David E. Hansen (the "Respondent") was held before Administrative Law Judge ("ALJ") Kevin J. Casutto on May 19, 1999, May 20, 1999 and June 9, 1999 at the Department's Region 1 Office, Stony Brook, New York. The Region 1 Staff was represented by Craig L. Elgut, Assistant Regional Attorney, NYSDEC Region 1 Headquarters, SUNY Campus, Stony Brook, New York. The Respondent was represented by Paula A. Miller, Attorney at Law, 225 West Main Street, Smithtown, New York.
  2. Upon review of the record and the Hearing Report of ALJ Casutto (copy attached), I hereby adopt its Findings, Conclusions subject to my comments below.
  3. The record of this hearing establishes that the Respondent David E. Hansen owns property located at 90 West Meadow Road in the Town of Brookhaven, Suffolk County, the shoreline of which is an inventoried tidal wetland.
  4. The record further shows that in 1989, the Respondent committed two violations of ECL §25-0401 and 6 NYCRR Part 661. In 1998, the Respondent committed five additional violations of ECL §15-0505 and §25-0401, and 6 NYCRR Parts 608 and 661. The Respondent substantially altered a regulated wetland and adjacent area along West Meadow Creek without the required protection of waters or tidal wetland permits. The violations include the creation of a 262-foot L-shaped earthen berm along the shoreline and side property line of the site, placing fill in regulated wetlands along the shoreline of West Meadow Creek, as more fully described in the Hearing Report.
  5. The Respondent filled two separate portions of the site, built an L-shaped earthen berm along the shoreline and side property line of the site, excavated an area measuring 145 feet by 50 feet in the regulated adjacent area, and deposited gravel in this area. Subsequently, the Respondent expanded the 145-foot by 50-foot area to 262 feet by 54 feet path. The Respondent also deposited construction and demolition debris in the tidal wetland - - all without having obtained any permit from the Department. Pursuant to ECL §25-0401 and ECL Article 15, and 6 NYCRR Parts 608 and 661, these alterations, structures and activities are regulated and require permits from the Department. Since the Respondent did not have a permit authorizing these regulated alterations, structures and activities, the Respondent violated ECL 25-0401 in five distinct instances (twice in 1989, three times in 1998) and violated ECL 15-0505 in two distinct instances in 1998. The violations associated with the creation of the L-shaped earthen berm and the creation of a 262-foot by 54-foot path and the placement of C&D debris fill in the wetland, continued at least from April 1, 1998 to June 27, 1998.
  6. In determining the appropriate civil penalty, I have considered the potential adverse impacts to the environment and the Respondent's culpability.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The seven charges against Respondent alleging violation of ECL §§ 25-0401 and 15-0505, and 6 NYCRR Part 661 and 6 NYCRR §608.5 are sustained.
  2. The Respondent's affirmative defenses, including the SAPA §301 timeliness defense to the two 1989 allegations, is dismissed.
  3. A penalty of Ten Thousand Dollars (10,000.00) for each violation of ECL Article 25, and Five Thousand Dollars (5,000.00) for each violation of ECL Article 15, a total penalty of Sixty Thousand Dollars (60,000.00), is assessed upon the Respondent, due and payable within thirty days of service upon the Respondent of a conformed copy of this Order.
  4. The Respondent, David E. Hansen, must perform restoration and remediation at the site in accordance with the recommendations of, and subject to the approval of, Department Staff. Within ninety (90) days after service of a conformed copy of this Order upon the Respondent, the Respondent shall provide the Region 1 Department Staff with a proposed remediation/restoration plan (the "plan"). The plan shall include but not be limited to the following work: The Respondent must remove all fill within ten feet of the tidal wetlands boundary, remove by hand all construction and demolition debris along the shoreline of West Meadow Creek, regrade the area, stabilize the shoreline berm with native salt-tolerant vegetation, and revegetate all affected tidal wetlands areas on the site. The Respondent shall fully and completely perform any other restoration or remediation deemed necessary by Department Staff to return the site to its natural condition.
  5. Any change in this Order shall not be made or become effective, except as specifically set forth by written order of the Commissioner or the Commission's designee, such written order being made either upon the written application of the Respondent, or upon the Commissioner or the Commissioner's designee's own findings.
  6. This Order resolves only those violations specifically articulated and described herein and in no way limits the Department's authority to enforce any other violations not described herein in the manner that the Department shall deem appropriate.
  7. For the purpose of insuring compliance with this Order, and with applicable provisions of the ECL and regulations promulgated thereunder, representatives of the DEC shall be permitted access to the Site and to relevant records in order to inspect and/or perform such tests as may be deemed appropriate to determine the status of Respondent's compliance.
  8. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 1 Director, NYSDEC, Building 40, SUNY Campus, Stony Brook, New York 11794.
  9. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill,
Commissioner
Albany, New York

Dated: January 3, 2000

To:
David E. Hansen (via Certified Mail)
90 West Meadow Road
Brookhaven, New York 11790

Paula A. Miller, Esq. (via Certified Mail)
225 West Main Street
Smithtown, New York 11787

Craig L. Elgut, Esq.
Assistant Regional Attorney
NYSDEC-Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

Alleged violations of Articles 15 (Water Resources) and 25 (Tidal Wetlands) of
the Environmental Conservation Law and Parts 608 (Use and Protection of Waters)
and 661 (Tidal Wetlands) of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

by:

DAVID E. HANSEN

RESPONDENT

DEC NO. R1-6098-98-06

HEARING REPORT

PROCEEDINGS

Pursuant to Article 71, Titles 11 and 25 of the Environmental Conservation Law of the State of New York ( ECL ) and Part 622 of Title 6 of the Official Compilation of Code, Rules and Regulations of the State of New York ( 6 NYCRR ), an administrative enforcement hearing was held before Administrative Law Judge ( ALJ ) Kevin J. Casutto, New York State Department of Environmental Conservation (the Department ), Office of Hearings and Mediation Services on May 19, 1999, in the Department's Region 1 Office, Stony Brook, New York. The hearing was continued on May 20, 1999 and June 9, 1999.

The hearing was conducted concerning a Complaint issued and duly served by the Staff of the Department's Region 1 Office ( Staff ) on June 27, 1998. Staff allege that the Respondent committed seven violations of ECL Articles 15 and 25 on property he owns located at and known as 90 West Meadow Road, Stony Brook, New York (the site ) by altering or disturbing regulated tidal wetlands or regulated adjacent areas.

Staff appeared at the hearing by Craig L. Elgut, Assistant Regional Attorney, Region 1, Stony Brook, New York. To support its case, Staff called as its witnesses George Stadnik, Marine Resource Specialist I, Clayton J. Colefield, Compliance Inspector and Regional Deputy Permit Administrators, Mark Carrara and Roger Evans.

The Respondent appeared at the hearing by Paula A. Miller, Attorney at Law, 225 West Main Street, Smithtown, New York. The Respondent David E. Hansen testified on his own behalf.

The transcript was received by the Office of Hearings on August 6, 1999. Closing briefs were postmarked by August 20, 1999, and the hearing record closed on August 24, 1999 upon receipt of Staff's closing brief.

Department Staff's Charges and Relief Sought

The Department Staff alleged that the Respondent committed seven violations:

  1. On or before June 6, 1989, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing or permitting to be caused, the excavation of a 145-foot by 50-foot area at the site in the adjacent area to the regulated tidal wetland without the required permit.
  2. On or before June 6, 1989, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing and/or permitting to be caused, the placement of gravel in a 145-foot by 50-foot area at the site in the adjacent area to a regulated tidal wetland without the required permit.
  3. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing or permitting to be caused, the construction of a 262-foot by 5-foot berm at the site, in the adjacent area to a regulated tidal wetland without the required permit.
  4. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing or permitting to be caused, the placement of fill in a 262-foot by 54-foot area at the site in the adjacent area to a regulated tidal wetland without the required permit.
  5. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing and/or permitting to be caused, the dumping of construction and demolition debris in a 25-foot by 4-foot area at the site in and adjacent to the regulated tidal wetland without the required permit.
  6. On or before April 1, 1998, the Respondent violated ECL §15-0505 and 6 NYCRR 608.5, by causing and/or permitting to be caused, the dumping of construction and demolition debris at the site in and adjacent to a regulated tidal wetland without the required permit.
  7. On or before April 1, 1998, the Respondent violated ECL §15-0505 and 6 NYCRR 608.5, by causing and/or permitting to be caused, the placement of fill at the site in and adjacent to a regulated tidal wetland without the required permit.

Staff seek an order imposing a total monetary penalty of Sixty Thousand ($60,000.00) Dollars(1) and requiring restoration of the site, including removal of all fill within ten feet of the tidal wetlands boundary, removal of all construction and demolition debris along the shoreline, regrading of the site, stabilization of the berm and revegetation of the tidal wetlands areas with native, salt tolerant vegetation, and any other restoration of the site that Staff deems necessary to return the site to its natural condition.

The Respondent's Answer

On August 19, 1998, the Respondent filed a Verified Answer With Counterclaims in which he denied the allegations in the Complaint or denied knowledge and information sufficient to form a belief as to the truth of the allegations in the Complaint. The Answer sets forth fifteen affirmative defenses and four counterclaims. The affirmative defenses, are summarized below:

  1. That the agency lacks personal jurisdiction over the Respondent.
  2. That the agency lacks subject matter jurisdiction over the Respondent.
  3. That the site is not a wetland or an adjacent area pursuant to 6 NYCRR Part 661.
  4. That the site is neither a designated tidal wetland nor an adjacent area, pursuant to the official Tidal Wetlands Map.
  5. That the Commissioner failed to follow the mandated procedures of ECL §25-0201 specific to including the site in its inventory, and therefore the site is not regulated.
  6. Any activities performed by the Respondent at the site were the result of an emergency, and are exempt pursuant to ECL §71-1129.
  7. Any activities performed by the Respondent at the site are a compatible use in accordance with ECL Articles 15 and 25.
  8. Any activities performed by the Respondent at the site did not substantially impair or alter the natural condition of a tidal wetland, and therefore do not require Departmental approval.
  9. Any activities performed by the Respondent at the site were maintenance of an already existing land use pursuant to 6 NYCRR 661.10.
  10. Any activities performed by the Respondent at the site are designated uses not requiring a permit pursuant to 6 NYCRR 661.5.
  11. The Department's failure to notify the tax assessor that the site allegedly has been designated a tidal wetland or adjacent area pursuant to 6 NYCRR §661.17 vitiates any claim that said premises are in fact regulated tidal wetlands or adjacent areas.
  12. The Respondent will suffer severe hardship if he is required to eliminate or reverse the activities performed at the site.
  13. The relief sought by the Department is a defacto taking of the Respondent's property.
  14. Expiration of the applicable statute of limitations.
  15. Laches.

Prior to hearing, the Respondent was granted leave to amend the fifteenth affirmative defense, laches, to a claim under State Administrative Procedures Act §301(1), that regarding the 1989 allegations, Staff failed to commence an adjudicatory proceeding within a reasonable time. Further, the Respondent was advised that the Environmental Conservation Law and related regulations make no provision for the assertion of a counterclaim in the administrative forum, but instead must be pursued in a court of appropriate jurisdiction. The Respondent filed an Amended Verified Answer dated May 11, 1999, regarding the fifteenth affirmative defense.

Official Notice

Official notice was taken of Official Tidal Wetlands Map No. 656-534, depicting the site (the "Map"); aerial photography black-and-white print No. 905; and aerial photography infra red color transparency sheet No. 906. The original documents are maintained by the Department.

The Affirmative Defenses

SAPA §301(1)

It is the Respondent's burden of proof to establish the elements of an affirmative defense. 6 NYCRR §622.11(b)(2).

State Administrative Procedures Act §301(1) requires that in an adjudicatory proceeding, all parties shall be afforded an opportunity for a hearing within a reasonable time. The statute does not specify what time period should be measured. Various courts have evaluated cases differently, depending upon how the hearing rights accrue. Further, in evaluating whether the time is 'reasonable', there is no fixed period after which delay becomes unreasonable as a matter of law. Instead, an administrative body (or court) sitting in review, must consider i) the nature of the private interest allegedly compromised by the delay; ii) the actual prejudice to the private party; iii) the causal connection between the conduct of the parties and the delay; and iv) the underlying public policy advanced by governmental regulation. Cortlandt Nursing Home v. Axelrod, 495 N.Y.S.2d 927 (Ct. App., 1985); see also, Manor Maintenance, et al., Hearing Report at 7 (Commissioner Order, February 12, 1996).

In applying these factors to the present case, I conclude that the delay is not unreasonable. Below is a discussion of the Cortlandt factors as applied to the present case.

- Actual Prejudice to the Private Party

It is undisputed that Staff noted the alleged violations in June 1989, that Staff served the Respondent with notice of the alleged violations at that time, and that the notice of hearing and complaint were not served upon the Respondent until June 1998, some nine years later. The Respondent asserts that in establishing that the site was regulated tidal wetland or adjacent area at the time of the 1989 alleged violations, Staff must present evidence of the site conditions in 1989. However, the Respondent contends that the vegetation and site conditions have changed significantly since 1989, rendering unreliable any evidence pertaining to the condition of the site in 1989.

Although vegetation at the site has indisputably changed over the nine-year period, this only makes current site conditions unreliable with respect to conditions that existed 10 years ago. However, current site conditions do not comprise the only evidence of 1989 site conditions. Respondent's conclusion regarding site characterization is misplaced. Instead, the Official Map and the tidal wetlands regulations are sufficient to determine that the site was regulated adjacent area in 1989 and continues to be so regulated(2). Further, in this instance, Staff made available the source aerial photography used to create the Map, as well as subsequent aerial photography. The Map, interpreted under the tidal wetlands regulations, is prima facie proof demonstrating that the site was a regulated wetland and adjacent area in 1989 (and continues to be so regulated).

Moreover, although the Respondent has made a generalized claim of prejudice due to delay, the Respondent has not specified any evidence that has become unavailable due to the passage of time. Instead, the Respondent admits that he performed the activities that are the basis of Staff's 1989 charges - excavation of material and placement of fill on the site; he described these activities readily and clearly. In this case, I conclude there is no actual prejudice to the Respondent as a result of the delay.

- The Underlying Public Policy

Preventing the destruction of tidal wetlands is an explicit legislative policy enunciated in ECL Article 25. Pursuant to ECL §25-0102, it is the public policy of the New York to preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social developments of the state. The courts have repeatedly recognized the critical importance of tidal wetlands. ECL §25-0102; See also, St. Aubin v Flacke,68 NY2d 66 (1986);N.Y.C. Housing Authority v Comm'r. of Env'l. Conservation Dep't., 83 Misc.2d 89 (Sup. Ct. Queens Co. 1975), cited in McKinney's ECL §25-0102 Practice Commentaries, by Philip Weinberg.

- The Causal Connection Between the Conduct of the Parties and the Delay

Regarding "the causal connection" factor, it is undisputed that Staff noted the violations in June 1989 and provided notice of the alleged violations to the Respondent at that time, but did not serve the Respondent with a notice of hearing and complaint until June 1998, some nine years later. The Respondent asserts that the period of delay is wholly attributable to Staff, and Staff have not disagreed. The Respondent indicated that from 1989 to 1998, he has been represented by counsel on these charges. Some communication occurred between the Respondent and Staff during the intervening years, although no disposition on the 1989 allegations was reached. Since first alleging the violations in 1989, Staff have consistently asserted that the site is regulated wetlands and adjacent area. The Respondent has consistently asserted that the site is not regulated.

- The Nature of the Private Interest Allegedly Compromised by the Delay

This factor is not applicable to the present matter, as the Respondent has not asserted any interest compromised by the delay in initiating this enforcement proceeding. The Respondent concedes he altered the property in 1989, purportedly to improve stormwater drainage on the site (and that he further altered the site in subsequent years, as recently as 1998). As noted above, Respondent's primary contention is that the site is not regulated tidal wetlands or regulated adjacent area.

There is no fixed time period after which delay becomes unreasonable as a matter of law. In applying the Cortlandt factors in this case, I conclude that Staff's delay of nine years in commencing the enforcement proceeding regarding the two 1989 charges, was not unreasonable delay within the meaning of SAPA §301. The Respondent's fifteenth affirmative defense, SAPA §301(1) unreasonable delay, is dismissed.

Other Affirmative Defenses

The Respondent's fifth and eleventh affirmative defenses are dismissed. By motion dated February 15, 1999, Respondent David E. Hanson sought to amend and clarify his discovery demand. The Respondent asserted that the subject property is not within the Department's tidal wetlands jurisdiction because the property is not designated as a tidal wetland on the Official Map. In furtherance of this defense, the Respondent sought additional discovery including notices to the affected property owners or the local townships at the time the Department established the tidal wetlands inventory.

By ruling dated March 15, 1999, I denied this motion for further discovery. Official Map No. 656-534 depicting the site was promulgated on October 9, 1974. The Respondent did not own the site at the time the mapping occurred, but instead became the owner of the site more than a decade later. I noted that the Official Maps are an inventory of tidal wetlands for the State of New York. The Maps identify boundaries which delineate all tidal wetlands of the state. ECL §25-0201. The Maps have been created, pursuant to statute, to provide clear and accurate maps of the tidal wetlands of the state for the purpose of effectuating the polices and provisions of the Tidal Wetlands Act, ECL Article 25.

Pursuant to ECL §25-0201(5), any person aggrieved by the Commissioner's Order promulgating the final Maps could, within thirty days from the filing of the Order and Maps, commence a proceeding pursuant to Civil Practice Laws and Rules ("CPLR") Article 78 to review the Commissioner's action. I ruled that to allow the Respondent's request for further discovery would be both unduly burdensome and irrelevant to matters at issue in this action. I denied the Respondent's motion seeking leave to amend his discovery demand. As a result, the Respondent was precluded from pursuing the fifth and eleventh affirmative defenses.

The Respondent's thirteenth affirmative defense raises a constitutional issue (takings) that cannot be addressed in the administrative forum, but must be pursued before a court of competent jurisdiction. The thirteenth affirmative defense is dismissed.

Regarding the seventh affirmative defense ('generally compatible use' within a regulated tidal wetland or regulated adjacent area), it is immaterial whether any of the activities at issue are classified as a compatible use within the meaning of 6 NYCRR §661.5(2). Even if any activity at issue is presumed, arguendo, to be a generally compatible use, a permit would nonetheless be required for that activity. 6 NYCRR §661.5(2). It is uncontroverted that the Respondent had no such permit.

The Respondent's remaining affirmative defenses, unless specifically discussed below, are summarily dismissed.

FINDINGS OF FACT

  1. Since 1988, the Respondent David E. Hansen has resided at and owned residential real property known as and located at 90 West Meadow Road, Town of Brookhaven, County of Suffolk, State of New York (the "site").
  2. The site is bordered on the southeast by West Meadow Creek and on the northwest by West Meadow Road. To the northeast of the site is the Old Field Country Club and to the southeast is Suffolk County park land, formerly known as the Old Field Horse Show Grounds. The site is on a portion of West Meadow Creek that forms a lagoon.
  3. At the site, West Meadow Road runs roughly parallel to the shoreline of West Meadow Creek, at a distance of approximately 200 feet from the shoreline. A single family residence is located on the site. From the Creek, moving landward, the Official Map identifies littoral zone wetlands, then intertidal marsh on the southeast portion of the site. As discussed below, Staff identified high marsh areas landward of the mapped zones.
  4. The waters of West Meadow Creek are navigable tidal waters of the State of New York. Land areas that border the Creek, including the site, are subject to tidal action.

The Historical Berm

  1. In the 1950's, a manmade earthen berm existed along the shoreline of the West Meadow Creek lagoon. The berm was created parallel to West Meadow Creek, running across the site and extending beyond the site along the perimeter of the lagoon. On the site, in the landward face of the berm were four step rising up to the crest of the berm. This berm continued to exist at the site at least into the early 1960's. (The "historical shoreline berm").
  2. However by 1974, this historical shoreline berm no longer existed on the site. From 1974 through at least 1989, at most what remained of this historical shoreline berm onsite were vestiges of the berm consisting of a slight rise in elevation of 18 inches or less, across the site roughly parallel with the shoreline of West Meadow Creek, and the steps.
  3. In 1988 when the Respondent acquired the property, no berm existed on the site. At most what remained were vestiges of the historical berm, and the steps.
  4. The steps were identified on the site by Departmental personnel in 1989 (and 1998), but by 1989 the steps were in a dilapidated condition.

The 1989 Site Visits

  1. Environmental Conservation Officer ("ECO") Lawrence W. Kelley visited the site on June 10, 1989.
  2. ECO Kelley reported observing site alterations consisting of excavation and placement of gravel in an area 145-feet by 50-feet adjacent to a tidal wetlands at 90 West Meadow Road, Old Field (Town of Brookhaven, County of Suffolk), New York.
  3. ECO Kelley issued a civil administrative "Notice of Violation" to the Respondent, and referred this matter to the Department's Bureau of Marine Habitat Protection for civil administrative compliance disposition.
  4. In response, Marine Resource Specialist I George Stadnik visited the site on two occasions, June 16, 1989 and November 8, 1989.
  5. On June 16, 1989, the steps described above, were in a dilapidated condition. Also on the site just seaward of the steps was a dilapidated portion of a bulkhead, approximately 5 feet in length.
  6. On June 16, 1989, recent alterations to the site had been made in the area between the rear of the existing residence and West Meadow Creek. The alterations consisted of the removal of naturally occurring wetland vegetation from an area behind the house, approximately 145-feet by 50-feet, and creation of an elevated area covered with gravel fill where the vegetation had been removed.
  7. Areas adjacent to the excavated area of the site were heavily vegetated with tidal wetland vegetation, including Spartina patens and marsh elder.
  8. A heavily vegetated rise in elevation of the land running across the site parallel to and near the shoreline of West Meadow Creek existed on the site.
  9. On June 16, 1989, Specialist Stadnik identified this rise as a 'slight berm'. High marsh vegetation existed on the seaward face of the berm and on portions of the top of the berm.
  10. On the Old Field Club property adjacent to the excavated onsite area, tidal wetland high marsh species were present, including groundsel bush (baccharis halimifolia).
  11. The type of vegetation that existed landward of the berm on the adjacent property was contiguous with the remaining vegetation on the site.
  12. On November 8, 1989, Specialist Stadnik returned to the site and obtained several photographs to document his earlier observations.

The 1998 Site Visit

  1. On October 30, 1991, Long Island including the site was subjected to a 100-year storm event. The site was flooded by the storm, with water to a depth of approximately 3 feet in the backyard of the site and water to a depth of approximately 2 feet inside the house.
  2. On April 1, 1998, Environmental Conservation Officers Marshall and Bengal visited the site on April 1, 1998. They reported observing site alterations including the construction of an L-shaped earthen berm approximately 262 feet long by 5 feet wide, filling an adjacent area and dumping construction and demolition debris in a tidal wetland. ECO's Marshall and Bengal referred this matter to the Department's Bureau of Marine Habitat Protection for civil administrative compliance disposition.
  3. On April 1, 1998, Inspector Clayton J. Colefield visited the site to perform a compliance inspection. At that time, Inspector Colefield had no knowledge of the pending 1989 charges.
- The Current L-Shaped Earthen Berm
  1. Between 1988 (when the Respondent purchased the property) and October 1991 (the 100-year storm event), the Respondent constructed a new shoreline berm parallel to the shoreline of West Meadow Creek (the "new shoreline berm"), similar to the historical shoreline berm.
  2. After constructing the new shoreline berm, which is subject to erosion due to tidal action, the Respondent periodically replenished the berm.
  3. Subsequent to the creation of the new shoreline berm, since the early 1990's, the Respondent periodically expanded the new shoreline berm.
  4. The Respondent also extended this shoreline berm in a landward direction, to create the currently existing L-shaped earthen berm measuring 262 feet in length. The landward arm of the L-shaped berm is located on the site along the side property line of the site with the Old Field Country Club (the "side berm").
  5. This L-shaped earthen berm has been located on the site since at least April 1, 1998.
  6. The shoreline arm of the L-shaped berm is located on the site parallel to the shoreline of West Meadow Creek and is 70 feet in length, 5 feet wide and approximately 3 feet tall along its seaward face. High marsh tidal wetlands vegetation exists on the top of the shoreline berm.
  7. The side berm arm of the L-shaped berm extends landward from the shoreline arm, along the property boundary of the site and the Old Field Club. The side berm arm is 192 feet in length, 10 feet wide and 2-1/2 feet in elevation.
  8. In the weeks prior to April 1, 1998, the Respondent had several truckloads of soil, sand and mulch delivered to the site. This material was of different coloration than the existing soils onsite. The Respondent used this material to create or substantially expand the side berm. He planted approximately 60 cedar trees and a perennial garden in this expanded side berm. This material also was used to create the path described below (see, FF #36).
  9. On April 1, 1998, an area of the shoreline berm approximately twenty feet in length had eroded to an elevation approximately 8 inches lower than the elevation of the surrounding shoreline berm. The Respondent placed at least seven hay bales in this eroded area of the berm.
  10. Low tides reach the seaward foot of the shoreline berm and high tides inundate a portion of the seaward face of the berm.
  11. On April 1, 1998 (and on June 16, 1989) tidal wetland high marsh vegetation was growing on the top of the shoreline berm, including marsh elder (iva frutescens).
- Excavation and Placement of Fill
  1. On or before April 1, 1998, the Respondent placed fill, consisting of construction and demolition debris, at the site in an area 25 feet by 4 feet, within the tidal high water level of West Meadow Creek.
  2. On or just prior to April 1, 1998, the Respondent excavated and then placed fill material on the site to create a path with dimensions of 262 feet by 54 feet. More specifically, the Respondent created the path with fill material in the backyard and side yard of the house (between the residence and the Old Field Club property line) with earthen fill consisting of soil, sand and mulch that was a different color than the existing soils onsite. This path includes the 145-foot by 50-foot area described above. On April 1, 1998, no vegetation existed on the path.
  3. The following environmental impacts result from the Respondent's activities:
    1. The creation of the L-shaped earthen berm onsite (i.e., the shoreline berm and the side berm) have resulted in the destruction of regulated tidal wetlands and regulated tidal wetland adjacent area. Increased siltation into the waterways resulting from erosion of the berm due to tidal action or other natural forces adversely impacts fauna and flora in the tidal wetlands area.
    2. The excavation of native wetland grasses from the site and deposition of gravel fill at the site destroyed large areas of regulated wetland adjacent area, removing habitat for wetland fauna and flora.
    3. The deposition of C&D debris in the wetland destroyed any tidal wetland vegetation in the regulated tidal wetlands. Siltation caused by the C&D debris area into the waterways adversely impacts fauna and flora in the tidal wetlands area. The soil in the area of the C&D debris would also cover neighboring areas through erosion and tidal action thereby delaying or preventing revegetation of the area surrounding the C&D debris.
    4. Revegetation of disturbed areas of the site by native fauna and flora will not occur for a lengthy period of time, if at all.

DISCUSSION

Jurisdiction and authority to initiate this administrative action is based upon Environmental Conservation Law ("ECL") §§ 3-0301(1), 3-0301(2)(g) and (h), 11-1505, 25-25-0401, 71-1107 and 71-2503.

Pursuant to ECL §25-0401, it is unlawful to perform any new regulated activity in a tidal wetland without a Departmental permit. Pursuant to ECL §25-0402 and 6 NYCRR §661.8, a tidal wetlands permit is required to conduct regulated activities on any tidal wetland or any adjacent area.

Pursuant to ECL §15-0505, and 6 NYCRR §608.5 a protection of waters permit is required to excavate or place fill in any of the navigable waters of the state or any tidal wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state and that are inundated at mean high water level or tide, without a protection of waters permit issued by the Department. Navigable waters of the state include wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state and that are inundated at mean high water or tide. ECL §15-0505 and 6 NYCRR §608.5.

Pursuant to ECL §25-0102, "[i]t is declared to be the public policy of th[e] state [of New York] to preserve and protect tidal wetlands, and to prevent their despoliation and destruction." To effectuate this public policy, an inventory was taken of all tidal wetlands within the state of New York. This inventory of tidal wetlands is set forth in the Official Maps. These Maps identify and delineate all tidal wetlands boundaries within the state. See, ECL §§25-0102 and 25-0201.

Department Staff have consistently asserted jurisdiction over the site. Map No. 656-534 depicts the site and identifies the southeast portion of the site bordered by West Meadow Creek, as regulated tidal wetlands.

The Historical Shoreline Berm and the Tidal Wetlands Boundary

Pursuant to 6 NYCRR §661.4(b)(1)(i) and (ii), regulated tidal wetland adjacent area is defined as:

". . . any land immediately adjacent to a tidal wetland within whichever of the following limits is closest to the most landward tidal wetland boundary, as such most landward tidal wetland boundary is shown on an inventory map . . .(i) 300 feet landward of said most landward boundary of a tidal wetlands. . . or. . . (ii) to the seaward edge of the closest lawfully and presently existing (i.e., as of August 20, 1977), functional and substantial fabricated structure . . . which lies generally parallel to said most tidal wetland landward boundary and which is a minimum of 100 feet in length as measured generally parallel to such most landward boundary, but not including individual buildings . . . "

6 NYCRR §661.4(b)(1)(i) provides for a 300-foot regulated adjacent area as a general matter. 6 NYCRR §661.4(b)(1)(ii) provides an exemption to this general rule for certain structures that pre-dated the effective date of the regulations. In order to take advantage of this exemption, one would have to show that the structure has continuously met the regulatory criteria since August 20, 1977 (the effective date of the tidal wetlands regulations).

The Respondent asserts that a man-made earthen berm within the meaning of 6 NYCRR §661.4(b)(1)(ii) has continuously existed on the southeast portion of the site along the shoreline of West Meadow Creek, since prior to 1977. One element of the Respondent's defense requires proof that since prior to the effective date of the tidal wetlands regulations in 1977, the historical earthen shoreline berm has continuously existed. When a functional and a substantial fabricated structure no longer meets the criteria in 6 NYCRR §661.4(b)(1)(ii), the structure no longer limits the landward boundary of the adjacent area. DEC v. Louis Bruni, Decision of the Commissioner, (January 18, 1995; DEC Case No. R1-5101) and attached Hearing Report, citing F.L.D. Construction Corp., Decision of the Commissioner (August 28, 1984; affm'd, F.L.D. Construction Corp. v. Williams, 122 AD2d 189, 504 NYS2d 726 [1986]).

The Respondent produced aerial photography from the 1950's and 1961 depicting a fabricated earthen berm greater than 100 feet in length extended along the coast of the West Meadow Creek lagoon, including the site. The Respondent asserts that this historical berm has continuously existed on the site (and around the lagoon), since the 1950's. The Respondent contends that pursuant to 6 NYCRR §661.4(b)(1)(ii), the seaward foot of this historical shoreline berm defines the northwesterly tidal wetlands boundary on the site. The Respondent concludes that the Department has no jurisdiction over the site landward of this tidal wetlands boundary. Consequently, the Respondent concludes that the Department lacks jurisdiction over the entire site and any site alterations that the Respondent performed are not within the Department's jurisdiction. (Affirmative Defenses 1 through 4).

The Department Staff have consistently asserted that the site is regulated tidal wetland and regulated adjacent area. Staff do not dispute that an historical shoreline berm existed at the site prior to 1977. However, Staff contend that the Respondent has failed to establish that this historical berm continued to exist since the last date of its documented existence. Staff also assert that an earthen berm is not "functional" or "substantial", nor is it a "fabricated structure" within the meaning of 6 NYCRR §661.5(b)(1)(ii). Staff assert that the tidal wetlands boundary on the site is on the top of the berm. Lastly, Staff assert that pursuant to 6 NYCRR §661.4(b)(1)(ii), the 300-foot regulated adjacent area is limited by West Meadow Road along the site's northwest property boundary, approximately 220 feet landward of the tidal wetland boundary on the site.

In countering the Respondent's argument, Staff presented the testimony of expert witness Compliance Inspector Clayton Colefield. Inspector Colefield interpreted the Official Map depicting the site and subsequent aerial photography depicting the site. Inspector Colefield testified that although the Respondent's historical 1950's photograph of the West Meadow Creek lagoon does depict a portion of a shoreline earthen berm on the site, the Official Map shows that no berm existed on the site by 1974. Inspector Colefield also examined the aerial photography from which the Official Map was produced and discerned no berm in that aerial photography(3). Further, he testified that aerial photography of the site taken on April 10, 1976, April 1, 1980 and April 24, 1982, show that no berm existed on the site on those dates. However, Inspector Colefield did identify a shoreline berm on the site, with a rise in elevation of approximately three feet on its seaward face, in the aerial photography of April 1, 1994.

During his April 1, 1998 inspection, Inspector Colefield observed that this new shoreline berm had been expanded into the L-shaped berm. Inspector Colefield stated that at present, the site would be subject to tidal inundation and flooding if the L-shaped berm was not present. Inspector Colefield's credible uncontroverted expert opinion is that the historical shoreline berm had eroded over time and has not existed in a functional or substantial capacity, since at least August 12, 1974. (After that date, the first identification of the new shoreline berm, i.e., a "slight berm" - is on June 16, 1989, the first Stadnik inspection.)

The conclusion reached by Inspector Colefield is further supported by the language of a 1984 deed for the site (Ex. 19). The last paragraph of the deed states:

"That the party of the second part shall maintain the area from West Meadow Creek's high mean water mark to the improved section of the demised premises in a natural state and undeveloped in perpetuity. It is recognized that there now exists a dilapidated bulkhead in the area between the high mean water mark and the improved section of the premises. (emphasis added)".

While the deed identifies a nonfunctional dilapidated bulkhead on the site, it makes no mention of a berm. The deed describes the shoreline area of the site as being in a natural state in 1984, except for the bulkhead. This description contradicts the Respondent's contention that the historical shoreline berm existed on the site at that time. Although some vestiges of the historical shoreline berm may have continued to exist in 1984 or subsequently, any rise in elevation would have been less than 18 inches, not discernable on the aerial photography. Such a rise in elevation along the shoreline of the site would not be a functional or substantial structure within the meaning of 6 NYCRR §661.5 (b)(1)(ii).

The reappearance of a new earthen shoreline berm in the 1994 aerial photography, similarly situated to the historic berm, shows that the new shoreline berm was created some time between 1982(4) and 1994. Moreover, I find that the Respondent created the new shoreline berm soon after acquiring the property in 1988, and he subsequently expanded the shoreline berm and extended it with the side berm, for the following reasons: 1) During his first 1989 inspection, Specialist Stadnik observed a slight berm along the shoreline of the site that had been recently created with soil excavated from the site. 2) The Respondent testified that when he acquired the site in 1988, the property had not been maintained, was in a state of disrepair and needed much work. The Respondent immediately began making improvements to the property and has continued to do so in subsequent years. 3) Since the previous owner had not maintained the property, it is more likely than not that the previous owner did not maintain the historical shoreline berm. 4) Some time between 1989 and 1998, the slight berm identified by Specialist Stadnik had been expanded into the substantial new shoreline berm, then expanded into the current L-shaped berm on the site. 5) The L-shaped berm is functional in preventing flooding possibly in all conditions, or at least under all but the most severe storm conditions. The Respondent has owned the site since 1988, and it is the Respondent that benefits from the flood protection provided by the berm.

An exemption from permitting pursuant to 6 NYCRR §661.4(b)(1)(ii) does not apply to the site because the historical shoreline berm has not continuously existed since 1977.

I note that although the Respondent has maintained that the site is not regulated, he has not pursued to conclusion any avenue such as a jurisdictional inquiry (6 NYCRR §661.18; discussed below) or a declaratory ruling (6 NYCRR Part 619)that would have resolved his jurisdictional claim, subject to judicial review.

Further, the current L-shaped berm is neither functional nor substantial within the meaning of 6 NYCRR §661.4(b) (1)(ii). The berm is not substantial because it is not capable of retaining its structure when subjected to tidal actions; it is subject to tidal forces of erosion. Another element of the Respondent's defense requires proof that the historical earthen shoreline berm continued to function as a barrier to flooding at the site, since prior to the effective date of the tidal wetland regulations in 1977. In this instance, the parties agree that the "function" of the shoreline berm is to prevent tidal flooding of the site. High marsh vegetation identifies the most landward limits of a tidal wetland zone.

A high marsh wetland zone is periodically flooded by spring and storm tides. 6 NYCRR §661.4(hh)(5). During his April 1, 1998 inspection, Inspector Colefield observed high marsh tidal wetland vegetation growing on the top of the shoreline berm. Therefore, the existing shoreline berm has not functioned to prevent tidal wetland vegetation from expanding landward. Since a high marsh wetland is periodically flooded by spring and storm tides, it follows that at least portions of the shoreline berm on the site are subject to periodic flooding by spring and storm tides. Accordingly, the shoreline berm is not functional within the meaning of 6 NYCRR §661.4(b) (1)(ii). See, F.L.D. Construction Corp., v Williams, 122 AD2d 189, 504 NYS2d 726 (1986) [Rip-rap wall did not constitute a 'functional and substantial man-made structure' where the wall was built from construction debris and fill and the nearby tidal wetland had expanded despite the existence of the wall].

The tidal wetland boundary on the site is on the top of the shoreline berm or on the seaward face of the berm, based upon the presence of tidal wetland indicator vegetation. The section of West Meadow Road that boarders the site is no more than 225 feet from the seaward foot of the shoreline berm. Since the tidal wetland boundary of the site is landward of the seaward foot of the shoreline berm, the 300-foot regulated tidal wetland adjacent area at the site terminates less than 300 feet from the tidal wetlands boundary, along the northwest boarder of the site with West Meadow Road. 6 NYCRR §661.4(b)(1)(ii).

The 1989 Site Visits

The Respondent's primary defense, that the Department's regulatory jurisdiction ends at the seaward foot of the shoreline berm, is rejected. The Respondent testified that prior to his acquisition of the site in 1988, the site was operated as a preschool. Further, the back yard of the property had been modified by the preschool with addition of several concrete pads, presumably activity areas, that had fallen into disrepair by the time the Respondent purchased the property.

The Respondent admitted that on or before June 6, 1989, he excavated material from the site and placed gravel fill in the excavated area. He claims to have made these changes to clean up the property and, with respect to the driveway, to aid in rainwater drainage from the site. The Respondent did not have a permit from the Department to conduct these activities.

Photographic Exhibits 8A through 8I depict the excavated are of the site in 1989. Exhibits 8A, 8B, 8D and 8E depict the area stripped of vegetation. Inspector Stadnik estimated the size of the area to be approximately 145 feet by 50 feet, comprising an area from the rear of the house to the top of the slight shoreline berm on the site. The excavated area extends beyond the width of the house on either side and was covered by a thin layer of gravel. Photographic Exhibit 8D, taken on November 8, 1989, depicts an elevated area, of which a substantial portion has been removed leaving sheer four foot drop. I credit Inspector Stadnik's opinion that this excavation was conducted with the use of heavy equipment.

Regarding the two 1989 allegations, the Respondent testified that he removed the concrete pads left by the previous owner, removed native grasses from the backyard area and modified the gravel driveway area by placing additional gravel in these areas. As discussed above, these areas of the site are regulated tidal wetland adjacent areas. The Respondent's admission that he conducted the activities on these areas of the site is an admission of essential elements of the 1989 "excavation" and "fill" charges.

- The Respondent's Jurisdictional Inquiry

Subsequent to the Respondent's receipt of notice of the 1989 charges, by letter dated January 19, 1990 the Respondent sought a jurisdictional determination from the Department regarding the site. See, 6 NYCRR §661.18. In support of the inquiry, the Respondent sent a letter to Staff that described the site as follows: The house and property are bordered by a functional, man-made, 207-foot berm on the site; the berm extends around the lagoon on West Meadow Creek.

In the letter, the Respondent described the planned work onsite as minor regrading for flood control. Specifically, the Respondent identified the following activities: use of a small Bobcat for regrading, replanting a cedar tree (blown over in a windstorm), creation of a recharge area next to the berm and removal of the ball valve from the nonfunctional storm sewer. Disturbed areas were proposed to be filled with washed sand and gravel.

On January 25, 1990, in response to the Respondent's jurisdictional inquiry Staff sent the Respondent a notice that processing and review of the inquiry were suspended pursuant to 6 NYCRR §621.3(f)(5), and that the pending 1989 alleged violations must be resolved before processing and review of the jurisdictional inquiry would occur. By letter dated October 22, 1990 Staff notified the Respondent that since no response had been received from the Respondent regarding resolution of the pending violations, the jurisdictional inquiry would be deemed withdrawn unless proof of resolution of the violations was received by November 28, 1990.

By letter dated December 17, 1991, Staff reiterated that the site is regulated as tidal wetlands or adjacent area pursuant to ECL Article 25. Also, the letter explains that there is no requirement that the regulated adjacent area be mapped, and that as set forth in 6 NYCRR §661.(4)(b)(i), the regulated adjacent area generally extends 300 feet landward of the tidal wetlands boundary.

The Respondent took no further action on his jurisdictional inquiry, and Staff deemed the matter withdrawn.

In conclusion, I find that the Respondent did alter the regulated adjacent area without a required tidal wetlands a permit. Specifically, on or before June 16, 1989, the Respondent caused the excavation of an area of the site approximately 145 feet by 50 feet between the shoreline of West Meadow Creek and the rear of the house, and the Respondent caused the placement of gravel fill in that area.

The 1998 Site Visit

Staff assert that on or before April 1, 1998, the Respondent committed five additional violations of the ECL and 6 NYCRR Parts 608 and 661, arising from the activities at the site of construction of the L-shaped berm (expansion of the shoreline arm of the berm and extension of the berm along the side property line of the site [the "side berm"] to create an L-shaped berm 262 feet long by 5 feet wide), placement of fill in an area 262 feet long by 54 feet wide and dumping of construction and demolition debris in an area 25 feet by 4 feet.

As discussed above, the Respondent's affirmative defenses asserting that the altered areas of the site are outside the jurisdiction of the Department have been rejected. Moreover, it is uncontroverted that in 1998, the Respondent performed the alterations to his property that are the basis for Staff's five alleged 1998 violations.

On April 1, 1998, Inspector Colefield conducted an inspection of the site as a result of a complaint forwarded to him by two Environmental Conservation Officers. At the site, he observed indications of recent construction and substantial site alterations.

- The Earthen Side Berm

The Respondent claims that he has been expanding the side berm since he obtained the property in 1988. He stated he has planted trees and shrubs in the side berm to provide a visual buffer from the adjacent Old Field Country Club property.

The Respondent admitted that he constructed the side berm on the site by expanding the shoreline berm landward along the Old Field Club property line. Further, the Respondent admitted that in 1998 he had several truckloads of soil, sand and mulch material delivered to the site, and he used this material to substantially expand the side berm and to maintain the shoreline berm. He stated he planted cedar trees and a perennial garden in the expanded side berm.

The resulting L-shaped berm is approximately 262 feet long, consisting of the shoreline berm arm (approximately 70 feet long) and the side berm arm (approximately 92 feet long). During his April 1, 1998 site visit, Inspector Colefield observed the recently created side berm on the site. One indication that the side berm had been recently created is that the newly placed fill had a different color from the existing soil onsite. He observed that the only vegetation existing there did not occur naturally, but had been planted there. This side berm arm of the L-shaped berm was not present in any of the earlier aerial photography described above.

On April 1, 1998, the elevation of the shoreline berm recently had been increased approximately one foot at its most seaward face, with new fill material. The fill placed on the shoreline berm was a loamy type of soil that did not exist naturally at the site.

- Excavation and Placement of Fill

On April 1, 1998, a pile of fill was present in the backyard. A path approximately 262 feet by 54 feet had been created in the backyard and side yard of the site with the new fill. This path includes the area identified during the 1989 inspection. No vegetation was present on this newly filled path.

- Dumping of Construction and Demolition Debris

Lastly, with respect to the charge of dumping construction and demolition debris material in the adjacent area to a tidal wetland, on April 1, 1998, Inspector Colefield testified that construction and demolition debris ("C&D") had been placed on the site at a location seaward of the berm in an area measuring approximately 25 feet by 4 feet. The Respondent admitted he placed "clean" concrete on the seaward face of the shoreline berm following the 100-year storm that occurred on October 30, 1991. Further, he testified that he used concrete pieces, broken cinder blocks, and sand on the site (allegedly, remnants of the preschool concrete pad activity areas), to reduce the effects of receding flood waters from the October 30, 1991 storm, that were eroding the berm. This material is construction and demolition debris, and also is fill material. The Respondent conceded that over time, the concrete may have migrated to the area seaward of the berm due to erosion and tidal forces.

The Respondent has asserted as an affirmative defense that his placement of concrete on the seaward face of the shoreline berm was an emergency activity exempt from the usual Departmental permitting requirements (6th affirmative defense). However, the Respondent has failed to comply with the requirements of 6 NYCRR §621.12 (Emergency Authorizations). The 6th affirmative defense is dismissed.

Since it is uncontroverted that the Respondent did not have a tidal wetlands permit from the Department to conduct these activities, the Respondent is in violation of ECL §§25-0401 and 6 NYCRR Part 661.

Further, low tides reach the seaward foot of the shoreline berm and spring and storm tides inundate at least a portion of the berm. Since the Respondent did not have a protection of waters permit, the Respondent also has violated ECL § 15-0505 and 6 NYCRR §608(5) by placing fill, consisting of C&D debris, in tidal wetlands that are adjacent to and contiguous to navigable waters of the state.

Wetlands Impacts of the Respondent's Activities

The following environmental impacts resulting from Respondent's activities:

  • The creation of the L-shaped earthen berm onsite (i.e., the shoreline berm and the side berm) have resulted in the destruction of regulated tidal wetlands and regulated tidal wetlands adjacent area. Increased Siltation into the waterways resulting from erosion of the berm due to tidal action or other natural forces adversely impacts fauna and flora in the tidal wetlands area.
  • The excavation of native wetlands grasses from the site and deposition of gravel fill at the site destroyed large areas of regulated wetlands adjacent area, removing habitat for wetlands fauna and flora.
  • The deposition of C&D debris in the wetlands destroyed any tidal wetlands vegetation in the regulated tidal wetlands. Siltation caused by the C&D debris area into the waterways adversely impacts fauna and flora in the tidal wetlands area. The soil in the area of the C&D debris would also cover neighboring areas through erosion and tidal action thereby delaying or preventing revegetation of the area surrounding the C&D debris.
  • Revegetation of disturbed areas of the site by native fauna and flora will not occur for a lengthy period of time, if at all(6).

PENALTIES

ECL § 71-2503 provides for a maximum civil penalty of ten thousand dollars ($10,000.00) for each violation of ECL Article 25 or 6 NYCRR Part 661.

ECL § 71-1107 provides for a maximum civil penalty of five thousand dollars ($5,000.00) for each violation of ECL Article 15 or 6 NYCRR §608.5.

Staff argues that based upon the Civil Penalty Policy, a penalty of $60,000.00 is warranted, as follows: 5 ECL Article 25 charges x $10,000.00 and 2 ECL Article 15 charges x $5,000.00.

Staff further maintain that the two ECL Article 15 violations have ongoing adverse environmental impacts, and therefore the Department could impose daily penalties for those violations. See, ECL §71-2503(a).

The Respondent asserts that any penalties would cause him severe hardship, especially if he is required to reverse any of the activities he performed at the site (Respondent's 12th affirmative defense). Primarily, the Respondent is concerned with protection against floodwaters.

- The Civil Penalty Policy and the Tidal Wetlands Enforcement Guidance Memorandum

The Civil Penalty Policy and the Tidal Wetlands Enforcement Guidance Memorandum outline factors to be considered in establishing a penalty, among them: economic benefit of delayed compliance and the gravity of the violation. The gravity component is based upon consideration of numerous factors, including: potential harm and actual damage; regulatory significance; culpability and history of noncompliance.

Actual environmental harms resulting from Respondent's activities are enumerated in the Discussion section above, entitled "Wetlands Impacts of Respondent's Activities", and are recited in Findings of Fact, Paragraph #37.

The Commissioner has stated that undertaking any action that requires a Departmental permit without first obtaining the permit is always a serious matter. (Civil Penalty Policy, page 8). In the present case, the Respondent has made very substantial alterations to regulated tidal wetlands and regulated adjacent areas. Therefore, the violations are very serious.

Moreover, Respondent was consistently advised by the Staff that the site is regulated tidal wetlands and regulated adjacent area, but the Respondent refused to accept that information. Although the Respondent steadfastly has maintained that the shoreline berm has continued to exist since prior to August 1977, he presented little evidence at hearing to support that contention.

Regarding economic benefit, if the Respondent had sought a permit, he would have had to hire an engineer or consultant and submit plans for the design of a flood control structure for the site, subject to Staff review and approval. Instead, the Respondent avoided the regulatory review permitting process and implemented whatever measures he deemed appropriate. This self help remedy resulted in the Respondent saving the costs of regulatory compliance.

As noted above, actual ongoing adverse environmental harm resulted from the Respondent's unpermitted activities.

Under the circumstances present in this case, including the aggravating factors identified above, I recommend that the Commissioner assess the full $60,000.00 monetary penalty and sanctions requested by Staff in this matter.

CONCLUSIONS

  1. The entire site is regulated tidal wetlands and regulated tidal wetlands adjacent area. The site has been so regulated since promulgation of the Official Map. The southeast area of the site is littoral zone, intertidal marsh and high marsh wetlands; the remainder of the site is adjacent area.
  2. The tidal wetlands boundary at the site is located along the seaward (southeast) portion of the site, on the top of the shoreline berm.
  3. The regulated tidal wetlands adjacent area at the site extends to the northwest across the site from the tidal wetlands boundary and terminates at the northwest boundary of the site with West Meadow Road.
  4. The site is located on navigable waters of the State of New York known as West Meadow Creek.
  5. On or before June 16, 1989, the Respondent violated ECL §25-0401 and 6 NYCRR 661 by excavating an area measuring 145 feet by 50 feet, located on the site in the regulated tidal wetlands adjacent area without the required tidal wetlands permit.
  6. Prior to excavation, this 145-foot by 50-foot area was highly vegetated.
  7. On or before June 16, 1989, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing (or permitting to be caused) the placement of gravel in an area approximately 145 feet by 50 feet at the site in the adjacent area to a regulated tidal wetlands without the required tidal wetlands permit.
  8. On June 16, 1989 Specialist Stadnik observed a rise in elevation on the site parallel to the shoreline. He characterized this rise in elevation as a 'slight berm'. This berm was created by the Respondent as a result of the excavation that had occurred on the site.
  9. Since June 16, 1989, the Respondent enlarged this slight manmade earthen berm to create, first, the new shoreline berm and subsequently, the currently existing L-shaped berm. This new shoreline earthen berm has an elevation of approximately 3 feet from the currently existing shoreline, and is located on the site similarly to the historical shoreline berm.
  10. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing the construction of an L-shaped earthen berm at the site, approximately 262 feet by 5 feet, in the tidal wetland and the regulated adjacent area to a tidal wetland, without the required tidal wetlands permit.
  11. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by causing (or permitting to be caused), the placement of fill in an area approximately 262 feet by 54 feet at the site in the adjacent area to a regulated tidal wetlands without the required tidal wetlands permit.
  12. On or before April 1, 1998, the Respondent violated ECL §25-0401 and 6 NYCRR 661, by placing construction and demolition debris in an area approximately 25 feet by 4 feet, at the site in the regulated tidal wetland without the required tidal wetlands permit.
  13. This construction and demolition debris is also "fill" within the meaning of ECL §15-0505 and 6 NYCRR §608.5. Therefore, on or before April 1, 1998, the Respondent also caused fill to be placed at the site in an area 25 feet by 4 feet, in tidal wetlands that are adjacent to and contiguous to navigable waters of the state, an area of the site that is inundated at mean high water or tide, without the required protection of waters permit, in violation of ECL §15-0505 and 6 NYCRR §608.5.
  14. The shoreline arm of the L-shaped earthen berm is also "fill" within the meaning of ECL §15-0505 and 6 NYCRR §608.5. A portion of the shoreline berm, including the seaward foot of the berm, is inundated at mean high water or tide. Therefore, on or before April 1, 1998, the Respondent also caused fill to be placed at the site in tidal wetlands that are adjacent to and contiguous to navigable waters of the state, an area of the site that is inundated at mean high water or tide, without the required protection of waters permit, in violation of ECL §15-0505 and 6 NYCRR §608.5.
  15. In weighing the harm caused by Respondent's activities and the defenses asserted by Respondent, I conclude that reduction of the monetary sanctions or mitigation of the restoration and remediation sought by Staff in this matter is not warranted.
  16. The Respondent's affirmative defense of exemption from permitting requirements pursuant to 6 NYCRR §661.4(b)(1)(ii) is rejected, since the exemption only applies to activities in the adjacent area, not activities in the regulated tidal wetland.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a complete review of the entire record of this hearing, my recommendation is that the Commissioner impose upon the Respondent a penalty, restoration and remediation consistent with Staff's request, as follows:

  1. The seven charges against Respondent alleging violation of ECL §§ 25-0401 and 15-0505, and 6 NYCRR Part 661 and 6 NYCRR §608.5 should be sustained.
  2. The Respondent's affirmative defenses, including the SAPA §301 timeliness defense to the two 1989 allegations, should be dismissed.
  3. A penalty of Ten Thousand Dollars ($10,000.00) for each violation of ECL Article 25, and Five Thousand Dollars ($5,000.00) for each violation of ECL Article 15, a total penalty of Sixty Thousand Dollars ($60,000.00), should be assessed, due and payable within thirty days of service upon the Respondent of a conformed copy of the Order.
  4. The Respondent should be ordered to perform restoration and remediation at the site in accordance with the recommendations of, and subject to the approval of, Department Staff. Such restoration and remediation shall include but not be limited to the following work: The Respondent must remove all fill within ten feet of the tidal wetlands boundary, remove by hand all construction and demolition debris along the shoreline of West Meadow Creek, regrade the area, stabilize the shoreline berm with native salt-tolerant vegetation, and revegetate all affected tidal wetlands areas on the site. The Respondent shall fully and completely perform any other restoration deemed necessary by Department Staff to return the site to its natural condition.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

1 In the "wherefore" clause of the Complaint, Staff requests a monetary penalty of $46,000.00. But in the penalty calculation attached to the Complaint and in their closing brief, Staff seek a $60,000.00 monetary penalty. This discrepancy of requested penalty assessment was not raised during hearing or in closing briefs by the parties. The Complaint provided notice to the Respondent of the maximum monetary penalties that could be assessed for the alleged violations. I take the occurrence of the $46,000.00 amount in the wherefore clause to be a typographical error.

2 As discussed below, pursuant to the regulations, the Respondent had recourse to seek a jurisdictional determination from Staff, and the Respondent in fact did so.

3 However, he stated that an elevation of less than 18 inches would not be discernable due to the limitations of the photographic resolution.

4 The aerial photography shows that the new shoreline berm did not exist before 1982.

5 6 NYCRR §621.3(f) [Enforcement actions] provides that Processing and review of an application may be suspended with written notice to the applicant if an enforcement action has been or is commenced against the applicant for alleged violations of law related to the activity for which the permit is sought or for alleged violations of the ECL related to the facility or site. Such suspension of processing and review may remain in effect pending final resolution of the enforcement action.

6 With respect to the shoreline berm that was initially created in 1988 or 1989 and expanded in subsequent years, some revegetation has already occurred as evidenced by the presence of high marsh vegetation on portions of the top of the shoreline berm.

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