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Harrison, Peter and Kotzen, Arnold and Alice - Decision, February 28, 2000

Decision, February 28, 2000

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 certification 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 -

PETER HARRISON
AND
ARNOLD AND ALICE KOTZEN

Permit Application No. 1-4738-00605/00004

DECISION

February 28, 2000

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Susan J. DuBois in the matter of the application of Peter Harrison, Arnold Kotzen and Alice Kotzen for construction of a bulkhead and placement of fill in the Town of Brookhaven, Suffolk County is hereby adopted as the Decision in this matter subject to my comments below.

The hearing record demonstrates that the project, as proposed, does not comply with the standards for issuance of the necessary permits. Specifically, the proposed project cannot meet the standards for issuance of a tidal wetlands permit (Environmental Conservation Law 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")) nor for a protection of waters permit nor a water quality certification (Environmental Conservation Law Article 15 and 6 NYCRR Part 608).

Based on the hearing testimony, and as reported by the Administrative Law Judge, it is likely, however, that a modified project could be proposed which would provide erosion control while still complying with the permit standards applicable to the modified project.

Accordingly, the application is denied without prejudice to pursue a new application for a modified project.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
February 28, 2000

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 certification 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 -

PETER HARRISON
AND
ARNOLD AND ALICE KOTZEN

Permit Application No. 1-4738-00605/00004

HEARING REPORT

PROCEEDINGS

An application for permits from the New York State Department of Environmental Conservation (the "Department") was made by Peter Harrison, 32 West 20th Street, New York, New York 10011 and Arnold and Alice Kotzen, 370 Lexington Avenue, New York, New York 10017 (the "Applicants"), for construction of a bulkhead and placement of fill behind the bulkhead. The proposed project would be located on the north side of Bay View Walk between Erie and Ontario Streets in Ocean Bay Park, Fire Island, New York. The site is in the Town of Brookhaven, Suffolk County, and is on the north shore of Fire Island adjacent to Great South Bay.

The project would require a Tidal Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR Part 661"), 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 Section 608.9. The application is also a joint application for approval from the United States Army Corps of Engineers for placement of fill in navigable waters.

Pursuant to ECL Article 8 (State Environmental Quality Review Act) and 6 NYCRR Part 617, the Department Staff determined that the proposed project is an unlisted action that will not have a significant effect on the environment, and that an Environmental Impact Statement was not necessary. On June 25, 1997, the Department Staff issued a negative declaration to this effect.

The matter was referred to the Department's Office of Hearings and Mediation Services to schedule a hearing. A Notice of Hearing, which also served as the Notice of Complete Application, was published on November 19, 1997 in the Department's Environmental Notice Bulletin and in the Long Island Advance on December 3, 1998.

Settlement discussions took place between the Department Staff and the Applicant during 1998, but no settlement was reached. The hearing began on January 19, 1999 at the Soldiers and Sailors Memorial Building, 201 East Main Street, Bayshore, New York, before John H. Owen, Administrative Law Judge ("ALJ"). The hearing continued, before ALJ Owen, on the following dates: January 20 and 21, March 2 and 3, and September 28 and 29, 1999.

The Applicants were represented by Lark J. Shlimbaum, Esq., of the law firm of Shlimbaum, Shlimbaum & Jablonski, Islip, New York. The Department Staff was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York.

No other persons, agencies or organizations participated in the hearing as parties. The Town of Brookhaven had submitted a comment letter, dated December 2, 1997, in which it requested party status, but did not appear at the hearing on January 19, 1999. The Town's letter stated that the project did not appear to be consistent with the Town Code's provisions regarding lands underwater and tidal wetlands. The letter also questioned the use to which the site would be put after the property is filled and stated that any impacts associated with this use need to be ascertained. At the start of the hearing, the Fire Island National Seashore submitted comments opposing the application.

The following witnesses testified on behalf of the Applicants: Daniel Lewis, Aram Terchunian, Kyle Collins, Dr. Eugene Kaplan, Dr. Robert W. Johnson, and Dr. Ronald W. Abrams, all of whom are environmental consultants retained directly or indirectly by the Applicants; Alice Kotzen, who is one of the Applicants; George Greenberger, a Commissioner of the Ocean Bay Park Fire District; Lawrence Mattiasen, former Chief of the Ocean Bay Park Fire Department; Scott Horvath, a marine contractor; Gerard Stoddard, President of the Fire Island Association; Bruce P. Martin, President of the Ocean Bay Park Water Corporation; John Driscoll, manager and operator of the Ocean Bay Park Water Company; Richard Buban, a former resident of Ocean Bay Park; and Luke Kaufman, ferry captain.

The following witness testified on behalf of the Department Staff: Charles T. Hamilton, Regional Supervisor of Natural Resources, DEC Region 1.

The parties submitted briefs on or about October 29, 1999 and the Applicants submitted a reply brief on November 8, 1999. The hearing record closed on November 10, 1999, upon receipt of the Applicants' reply. By agreement of the parties, the deadline for a decision on the application was extended until mid-February, 2000. The hearing was re-assigned to ALJ Susan J. DuBois in early 2000 and the present Hearing Report was prepared by ALJ DuBois.

POSITIONS OF THE PARTIES

The Applicants

The Applicants argued that the area mapped as tidal wetland on the site was not functioning as a tidal wetland and should not be subject to the Department's tidal wetlands jurisdiction. The Applicants also maintained that even if the Department does have tidal wetland jurisdiction, a permit should be issued since the wetland has no value but the project is necessary in order to provide erosion protection for their upland property as well as the street and a municipal water pipe.

The Department Staff

The Department Staff took the position that there are tidal wetlands on the site, that do function in a number of ways to provide the values associated with tidal wetlands. The Department Staff argued that the project does not meet the standards for issuance of a tidal wetlands permit nor the other Department approvals required, and that erosion protection could be provided by building a bulkhead at the mean high water line.

ISSUES FOR ADJUDICATION

The issues for adjudication were identified as follows:

Whether the proposed project meets the standards for issuance of a tidal wetlands permit specified in 6 NYCRR 661.9(b)(1)(i), (ii), (iii) and (v);

Whether the proposed project meets the standards for issuance of a protection of waters permit specified in 6 NYCRR 608.8(a), (b), and (c); and

Whether the proposed project meets the standards for issuance of a water quality certification pursuant to 6 NYCRR 608.9(a)(1) and (6).

The parties agreed on the record that the above were the issues for adjudication.

REGULATORY PROVISIONS

6 NYCRR 661.9(b)(1) states, in pertinent part: "The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity: (i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetlands areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of the Part, taking into account the social and economic benefits which may be derived from the proposed activity; (ii) is compatible with the public health and welfare; (iii) is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent;.. (v) complies with the use guidelines contained in section 661.5 of this Part. If a proposed regulated activity is a presumptively incompatible use under such section, there shall be a presumption that the proposed regulated activity may not be undertaken in the subject area because it is not compatible with the area involved or with the preservation, protection or enhancement of the present or potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed activity will be compatible with the area involved and with the preservation, protection, and enhancement of the present and potential values of tidal wetlands..." 6 NYCRR 661.5(b)(30) lists filling as a presumptively incompatible use in coastal shoals, bars and flats.

With regard to the standards for issuance of a protection of waters permit, 6 NYCRR 608.8 states: "The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that: (a) the proposal is reasonable and necessary; (b) the proposal will not endanger the health, safety or welfare of the people of the State of New York; and (c) the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment."

With regard to the standards for issuance of a water quality certification, 6 NYCRR 608.9 states, in pertinent part: "Any applicant for a Federal license or permit to conduct any activity, including but not limited to the construction or operation of facilities that may result in any discharge into navigable waters... must apply for and obtain a water quality certification from the department, The applicant must demonstrate compliance with... (1) effluent limitations and water quality-related effluent limitations set forth in section 754.1 of this title ... (6) State statutes, regulations and criteria other wise applicable to such activities."

RULINGS

Jurisdiction

The Applicants contested the Department's tidal wetlands permit jurisdiction over the site and the proposed project. ALJ Owen ruled at the hearing that the Department does have jurisdiction (Transcript, page 486).

The Applicants alluded to this question again in their closing brief, by reference to 6 NYCRR 661.2(f), which provides that littoral zones or coastal shoals, bars or flats that do not function biologically as tidal wetlands should no longer be treated as tidal wetlands under Part 661, based on a case-by-case identification of such areas (see §661.2(f) for full text of subdivision). The Department Staff's brief argued that the Department does have jurisdiction, and included an argument that excluding a site from tidal wetlands designation pursuant to §661.2(f) would require a re-mapping procedure under §661.15.

The Applicants' brief did not make an renewed motion challenging jurisdiction, nor did they request a map amendment, but instead put the reference to §661.2(f) in the context of their argument that the project is compatible with the preservation of the values of tidal wetlands on the basis that the site has no value as a tidal wetland. Apart from the procedural questions, however, as discussed in the findings below the record demonstrates that the site does function biologically as a tidal wetland. Accordingly, the procedural arguments about amending tidal wetlands maps need not be reached. I concur with ALJ Owen's ruling regarding jurisdiction.

Receipt of documents attached with the Department Staff's brief

The Department Staff's brief has attached with it four sets of documents which include deeds, certificates of title and tax bills for the site and the lots on which the Applicants' houses are located. The Applicants' reply brief objected to consideration of these documents on the basis that they were submitted after the hearing and without permission of the ALJ, and that they therefore violate the Applicants' due process rights.

Contrary to the assertion in the Applicants' reply brief, a portion of these attachments are documents of which official notice was taken at the hearing and which were to be provided for the record by mail by the Department Staff, with a copy to the Applicants. The documents of which official notice was taken were deeds for the transfer of ownership of the site to the Applicants and to the prior owners (Transcript, pages 759 - 764). These documents are properly in the record.

The tax bills which were attached with the Department Staff's brief were not among the documents of which official notice was taken. They also appear to be relevant to matters that would not be decided in this administrative hearing, specifically the question of whether denying the permit would be a taking of the Applicants' land without compensation. This is a matter that would be litigated in court rather than in an administrative permit hearing (Spears v. Berle, 48 N.Y.2d 262, 422 N.Y.S. 636 (1979)). Thus, the tax bills are not being considered in this hearing, nor are any other documents in the attachments which are not materials of which official notice was taken at the hearing.

FINDINGS OF FACT

  1. The Applicants in this matter are Peter Harrison, 32 West 20th Street, New York, New York 10011 and Arnold and Alice Kotzen, 370 Lexington Avenue, New York, New York 10017. Both Mr. Harrison and the Kotzens own houses on the north shore of Fire Island in the community of Ocean Bay Park. The site of the proposed project is an area located between the two houses, which consists of two building lots one of which is owned by Mr. Harrison and one of which is owned by the Kotzens. The houses and the project site are located north of Bay View Walk between Erie and Ontario Streets, and are bordered on the north by Great South Bay (see map, Appendix A of this report). Ocean Bay Park is in the Town of Brookhaven, Suffolk County (see map, Appendix B of this report, for general location).
  2. Mr. Harrison has owned his house next to the site for over 20 years. The portion of the site ("lot 33") next to his house is owned at present by Mollie Harrison. Ownership of lot 33 was transferred from Peter Harrison, Mollie Harrison, James Zunno and Pauline Zunno to Mollie Harrison alone in 1996. The Kotzens use their house next to the site during the warm half of the year. Mr. Kotzen bought the house approximately twenty years ago. The Kotzens bought their portion of the site (referred to as "lot 34") in 1996. Prior to 1996, lot 34 was owned by the Harrisons and the Zunnos.
  3. The site measures 50 feet along Bay View Avenue and Great South Bay (its approximately south and north sides, respectively). It is approximately 100 feet long on its western side bordering Mr. Harrison's house and approximately 107 feet long on its eastern side bordering the Kotzens' house. The site is divided lengthwise into two lots, each measuring 25 feet along Bay View Avenue. The northern part of the site is, and has been since at least some time in the 1970's, below the mean high water of Great South Bay. The southern part of the site consists of a beach with coarse sand and pieces of concrete. As discussed further below, there has at times been erosion at the site that has eroded the sidewalk along Bay View Avenue. There are existing bulkheads along the north sides of the lots on which Mr. Harrison's house and the Kotzens' house are presently located, as well as existing bulkheads along the north-south boundaries between these lots and the project site.
  4. The general area in which the project is located contains numerous houses along the water, most but not all of which have bulkheads between the houses and the Bay. There is a ferry dock several buildings to the east of the site, and the areas on either side of the land associated with the ferry dock do not have bulkheads.
  5. The Applicants propose to construct a bulkhead 50 feet long between the ends of the existing east-west bulkheads, and to backfill in the lots south of the proposed bulkhead with approximately 350 cubic yards of barged-in sand. The bulkhead would be built of treated wood attached by tie rods to 8 inch diameter pilings, which would be buried under the backfilled sand. No other construction on the site is proposed. The stated purpose of the project is erosion control. Mrs. Kotzen testified at the hearing that she intends to use part of the site as a garden and to plant part of it with grass, and might at some time plan to build a tool shed but that the latter was not necessary.
  6. Tidal wetland inventory map number 656-500, prepared by the Department in 1974, shows approximately two thirds of the site as being tidal wetland. Specifically, the wetland on the site is labeled SM, denoting coastal shoals, bars and flats. The tidal wetlands boundary as depicted on the inventory map intersects the west side of the site approximately 68 feet south of the Harrison's existing east-west bulkhead. It intersects the east side of the site approximately 78 feet south of the Kotzens' existing bulkhead.
  7. The record contains information about the high water line at various times and conditions. The exact present location of the mean high water line is not clear in the record (see 6 NYCRR 608.1(i) for definition of this term). The evidence demonstrates that the mean high water line is somewhere between 10 and 30 feet north of the southern property line of the site.
  8. The wetland area on the site functions biologically as a tidal wetland and provides fish and wildlife habitat and marine food production. Samples which were taken by the Applicants' consultants found numerous kinds of worms in the sediments on the site. The worms serve as a food source for bottom fish, and the site is the kind of habitat which is used seasonally by winter flounder. No flounder were actually observed, but their presence there would be seasonal and the sampling methods used were ones that would not be effective in finding them. They also are camouflaged by their coloration. At various times, floating eelgrass accumulates in the site and washes up on the beach. The amount of eelgrass within the site varies with the wind and water conditions. One of the Applicants' consultants observed attached eelgrass growing on the bottom 10 or 20 feet out from the location of the proposed bulkhead and the Department Staff witness interpreted one of the photographs in the record as showing attached eelgrass growing on the bottom within the site. Floating eelgrass leaves which were included in the samples had barnacles, hydroids and bryozoans growing on them. Both the attached and the floating eelgrass serve as part of the food web, as do amphipods which live in the floating eelgrass. The two existing north-south bulkheads have blue mussels and a number of species of algae growing on them. Although the mussels were observed to be young ones, suggesting that the mussels on the bulkheads had been killed off relatively recently, they were present again at the time of a 1999 site visit. The mussels and algae also serve as the food chain, for crustaceans which are in turn eaten by pipefish, a kind of fish which was observed at the site. Silversides and mummichog, which serve as food for larger fish and some birds, were observed at the site; blue crabs and lady crabs were also observed. Birds were observed feeding on the rotting vegetation on the beach and terns were observed about 20 or 30 feet offshore from the site feeding on small fish. Isopods were found among the concrete on the beach, and these organisms are also part of the food web. Although some of the kinds of animals were observed in small numbers, and there was testimony about the absence of certain other wetland species, the record demonstrates that the wetland portion of the site is functioning biologically as a tidal wetland.
  9. The amount of floating and beached eelgrass within the site differed among the dates on which observations were made. On one date, in July 1999, there was a small amount of eelgrass in a layer about a inch thick in the intertidal area. On a date in September 1999, which was chosen for sampling as a date on which the effect of eelgrass accumulation could be observed, the beach was entirely covered with eelgrass and the floating eelgrass "thicket" extended about 20 to 30 feet out from the beach into the water. The record contains a photograph in which floating eelgrass is present in most of the site as well as in front of the existing east-west bulkhead north of the Kotzens' house. The Applicants contended that the eelgrass accumulates within the site and decomposes, reducing the dissolved oxygen level such that organisms are periodically killed off and there is not a lot of life on the site. On the September 1999 sampling date, the dissolved oxygen concentration was measured at two locations landward of the water line but under the eelgrass mat, and at a third location within the site but in open water. Under the eelgrass, the dissolved oxygen concentration was low (1.03 and 1.27 parts per million (ppm)) but the dissolved oxygen at the third location was high (9.82 ppm) and within the range identified by one of the Applicants' consultants as indicating oxygen saturation. This third sampling location was well within the site, slightly waterward of where the July 11, 1996 high tide line appears on the survey. At the time of this site visit, there was a vegetative mat of eelgrass at locations near the beach, but a "weed free zone" at locations near and waterward of the July 11,1996 high tide line. While low dissolved oxygen conditions do occur under the eelgrass which accumulates on the site, the presence and extent of this condition varies with the season and wind conditions.
  10. Water birds have been observed in the area just offshore from the site but they may enter the site itself relatively infrequently due to the nearness of the houses. As discussed above, however, birds consume other organisms that live within the site.
  11. The site and the neighboring lots have experienced erosion in storms. The water has come up to the sidewalk on occasions and has eroded the sidewalk twice in the past three or four years. On one occasion, in a major storm, the water main under the sidewalk was washed out and had to be replaced. Erosion has occurred on the Kotzens' lot both along its western side (the side near the site) and on its northern side (along the existing east-west bulkhead). There has also been erosion of the southern portion of their lot due to water going onto Bayview Avenue. Mr. Harrison's lot has also been undermined from the south by high water going behind his north-south bulkhead. During storms, water splashes up against the west side of the Kotzens' house. The record of where the shoreline has been located over the years, and the size of the beach, is not well documented, but it indicates some net erosion.
  12. A bulkhead located landward of the proposed bulkhead location (for example, at the various places depicted as mean high water or close to the sidewalk) would also provide erosion protection for the existing beach, the sidewalk and the water main. A bulkhead located landward of the proposed location could be more vulnerable to damage than a bulkhead that was in line with the existing ones and could require more maintenance, but the bulkhead would function and would control erosion. The Department Staff were willing to grant a permit for construction of a bulkhead located at or above mean high water, with backfill as necessary.
  13. The benefits of the project would be to control erosion, although the record does not demonstrate that it is necessary to put the bulkhead in line with the existing ones and to fill essentially the entire site in order to accomplish this. The project would also create areas of side yard for each of the houses. The impacts of the project would be to eliminate the tidal wetland functions of site, with the exception of the biological activity associated with the existing north-south bulkheads. While these bulkheads would be buried or eliminated, a similar although slightly smaller area of hard substrate would be created by construction of the new bulkhead. Attachment of organisms to the new bulkhead would be inhibited by the wood treatment chemicals in the new lumber, until such time as enough of the chemicals had leached out.
  14. The record contains some evidence regarding other impacts and benefits. If the bulkhead were constructed and the site were filled, it is possible that a situation could arise in which the fire department would take water for fire fighting by driving a fire truck across the site and putting a hose into the bay, but this procedure was not shown to be necessary. There are existing fire hydrants, and one of the fire commissioners had not encountered any situations in which the need to draw water from the bay as opposed to from a hydrant had caused a problem in fighting a fire. The former chief of the fire department knew of two situations in which firefighters had attempted to use the site for access to water from the bay for fighting fires. In both of these, the fire trucks had gotten stuck on the site and the houses had burned. In one situation, the truck got stuck since firefighters from a neighboring department, "not knowing any better," drove onto the site to get water. In the second case, a firefighter (again from another department) disobeyed the fire chief's order to draw water from the bulkhead which is next to the firehouse and instead drove onto the site and got the truck stuck. The proposed project, or its absence, would have no effect one way or the other with regard to ease of water rescues, since the rescuers would probably prefer to remove someone from the water at a bulkhead but there are existing bulkheads immediately adjacent to the site. The value of the site for recreation is relatively low, since it is not open to public use and since it sometimes contains debris such as old tires, wood and floating trash. The debris, however, is of kinds that could be removed by the Applicants or that are commonly removed in shoreline cleaning projects. In the past, the site has been used for storing a boat or boats. Although the Applicants do not currently plan to sell the site for a building lot, filling the site would increase the likelihood that this would occur at some future date.

DISCUSSION

Testimony about values of the wetland

The record demonstrates that although the site is not an unusually outstanding or attractive wetland, it is also not the useless wasteland that the Applicants seek to portray it as being. The evidence submitted by the Applicants' own consultants demonstrated the presence of numerous marine and coastal species, some of which are used as food by other species found on the site. While low dissolved oxygen concentrations were observed under a mat of eelgrass, the extent of this condition is variable and the site cannot be considered to be a dead zone. The evidence submitted by the Applicants' own consultants included many of these observations. While the witnesses for the Applicants provided evaluations of the site which discounted its importance, their actual observations demonstrated that the tidal wetlands on the site are functioning biologically as tidal wetlands. It is true that the site is small in comparison with all of Great South Bay, but this would be true of any site of comparable size and does not negate the existence of tidal wetland functions on the site.

Location of mean high water and location of high tide

The survey which was submitted with the application shows the high tide line at the time of the survey, which was done on July 11, 1996 (see map, Appendix A of this report). This line is a curve, which is farther from the bay near the center of the site than near the sides, and it is located roughly halfway between the proposed bulkhead location and the landward boundary of the site. This line is described as being the high tide location on particular day, not the mean high tide. Photographs taken in the mid-1990's, including in 1996 and 1997, show a beach on the landward portion of the site, large enough that a small motor boat was beached on it, but the tidal stage at the time when two of the photos were taken is not in the record, and the others are aerial photos taken at mid-tide. Alice Kotzen has observed that the high water line is generally located 30 to 40 feet north of the southern boundary of the site in calm weather but that the water has gone up to the street during storms. A drawing dated September 4, 1996, which was submitted by Mr. Harrison as part of the application, showed the mean high water line as being 5 feet, 6 inches north of the southern property line. The record does not indicate how Mr. Harrison determined this location for the mean high water line. Mr. Hamilton testified that the Department Staff would approve a bulkhead located 8 to 10 feet north of the southern property line. His testimony contains references to this location both as being the "mean high water" line and as being the "high tide" line as used in defining coastal shoals, bars and flats (see 661.5(hh)(3), which refers to "high tide" rather than "mean high water" and ECL 25-0103.1 which refers areas "subject to tidal action"). In the context of his testimony as a whole, the line 8 to 10 feet north of the southern property line is his opinion of the current location of the boundary of coastal shoals, bars and flats, not the mean high water line, in other words a location that is under water at high tide without reference to a mean or average.

SEQRA determination and permit standards

In their memorandum of law, the Applicants raise the argument that the Department's issuance of a negative declaration for the project under the State Environmental Quality Review Act confirms that the Applicants' proposed activity will result in no adverse environmental impacts. The Applicants argue that the permitting standards in 6 NYCRR §608.8 (Protection of Waters) and 661.9(b)(1) (tidal wetlands) are nearly identical to, or mirror, respectively, the criteria in 6 NYCRR 617.7(c) (SEQRA) for determining whether there will be significant adverse environmental impacts. The Applicants argue that if the Department Staff issued a negative declaration under SEQRA and did not rescind the negative declaration, the Department Staff's position that the project does not meet the permitting standards does not stand.

Examining the sections cited above indicates that while there are similarities between the permitting standards and the criteria for determining whether to require an environmental impact statement, there are also differences. For example, the SEQRA criteria refer to "substantial" adverse impacts and removal or destruction of "large quantities" of vegetation or fauna (§617.7(c)(1)). In contrast, the standards for issuance of a protection of waters permit refer to "unreasonable, uncontrolled or unnecessary" damage to natural resources (§608.8). The tidal wetlands permit standards refer to "undue adverse impact" on the value of wetlands for various functions (§661.9(b)(1)).

The decision to issue a negative declaration does not mean that the proposed action also meets the standards for issuance of a tidal wetlands permit (Brotherton v. Department of Environmental Conservation, 189 A.D.2d 814, 592 N.Y.S.2d 437 (2d Dept., 1993; see also Goldhirsch v. Flacke, 114 A.D.2d 998, 495 N.Y.S.2d 436 (2nd Dept., 1985)).

Off-site mitigation

The Applicants proposed to bring into the record evidence regarding an off-site project for mitigation of the impacts on the wetland. This was excluded, after objection by the Department Staff, as being evidence concerning settlement negotiations. The record does not indicate that the application included a proposal for off-site mitigation, nor that the application was ever amended to include this. 6 NYCRR Part 661.9(e) allows the Department, in its discretion, the "consider any proposal made by the applicant in his application to enhance the existing values served by a wetland on or in the vicinity of the site of the proposed regulated activity or to create and sustain new wetland values in or in the vicinity of the proposed regulated activity, provided such proposal relates to an area that is or will be regulated under this Part." While off-site mitigation can be considered under the tidal wetlands permit program, this is at the discretion of the Department and requires consideration of a specific proposal.

Future use of site

The Department Staff contended that, if filled, the site would become a prime building lot and that the impact of such things as a septic tank on the newly filled lot should be taken into account. While this may occur at some time in the present, it is not proposed as part of the current application and it is plausible that the Applicants would use the filled area as side yards of their houses. Mr. Harrison's house has an existing side yard but the Kotzens' house has only an extremely narrow side yard.

Comparison with project in Fire Island Pines

The Applicants presented as an exhibit in this hearing the record of an enforcement hearing which took place in 1989 regarding a retaining wall in Fire Island Pines, Town of Brookhaven (Exhibit 27, Matter of Great South Beach Marine Construction, et al.). The Applicants argued that this project was "identical" to that proposed in the present application and that in the Fire Island Pines case the Department had allowed 70 to 10,500 square feet of wetlands to be filled, thereby demonstrating that the impacts of bulkheading and filling small areas are not unduly adverse and do not otherwise violate the standards.

In the Fire Island Pines case, the project for which the Department granted a permit was placement of a timber retaining wall a minimum of five feet above mean high water(1), with placement of backfill. In violation of the permit, the wall was built between 20 and 30 feet seaward of the mean high water mark. The Department Staff brought an administrative enforcement action, seeking monetary penalties and restoration. The Department Staff settled the enforcement action with 8 of the 10 respondents by orders on consent, which orders imposed fines but did not require removal of the bulkhead. A hearing was held with regard to the complaints that had not been settled, which resulted in an Order of the Commissioner which imposed fines on the two remaining respondents (a construction company and a partner in the company) but did not require removal of the bulkhead. At that hearing, counsel for the Department Staff had stated that in view of the settlement with the property owners and the complexity of the case the Department Staff was not seeking removal of the bulkhead.

The Fire Island Pines case and the present application actually differ in a number of important ways, and the Fire Island Pines case does not support the position argued by the Applicants. The permit which the Department granted to the Fire Island Pines landowners was for a bulkhead at least five feet above mean high water, not for a bulkhead seaward of the mean high water line. The bulkhead was then built seaward of the mean high water line without the Department Staff's knowledge or approval. The Department Staff's response (after discovering where the bulkhead had been built) was to bring an enforcement action, not to approve of the change. The Department Staff exercised prosecutorial discretion in settling the matter without requiring removal of the structure, based at least in part upon the complexity of the case due to the number of people involved (see Exhibit 27, transcript of October 31, 1989 proceedings, p. 30). In that case, the Department Staff's permit decision was consistent with their position in the present case. By the time of the enforcement hearing, the Department Staff was reacting to construction work that was a fait accompli. The Commissioner's May 23, 1990 Order in the Great South Beach Marine Construction, et al. hearing does not provide a precedent for the present hearing.

CONCLUSIONS

  1. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(i) in that it will lead to destruction of an area of tidal wetland and will have an undue adverse impact on the present value of the wetland for marine food production and wildlife habitat. The effect is an "undue" adverse impact particularly since erosion at the site could be controlled by a bulkhead at a location where less or possibly no area of tidal wetland would need to be filled. Similarly, although some form of erosion control at the site was shown to be necessary, the project as proposed was not shown to be necessary (661.9(b)(1)(iii)). The impact of the project on public health and welfare (661.9(b)(1)(ii)), other than to the extent that the habitat contributes to the public welfare, would be neither beneficial nor detrimental.
  2. Construction of a bulkhead is listed in Part 661 as being a "Generally compatible use - permit necessary" when conducted in coastal shoals, bars and mudflats, but filling is a "Presumptively incompatible use - permit necessary" when conducted in these same wetland areas. The Applicants did not overcome the presumption of incompatibility with preservation, protection, or enhancement of the values of the tidal wetlands. Thus the project does not meet the standard for permit issuance in 661.9(b)(1)(v).
  3. With regard to the standards for a protection of waters permit, as stated above the project as proposed is not reasonable and necessary (608.8(a)) although some form of erosion control structure at the site is necessary. The project meets the standard in 608.8(b) except to the extent that the natural resources which would be damaged are considered to be part of the welfare of the people of the state, but the project does comply with this standard in that it will not endanger health or safety. The project as proposed will cause unnecessary damage to the natural resources of the state, specifically fish, crustaceans, and aquatic environment, since a larger-than-necessary area would be filled, and thus the project does not meet the standard in 608.6(c).
  4. With regard to the standards for granting water quality certification, there is no indication in the record that the effluent limitations set forth in 6 NYCRR 754.1 would be violated by the project. This standard for granting of water quality certification (608.9(a)(1)) was only briefly addressed in the testimony and although the parties had agreed that it was part of the issues it did not seem to be actively in dispute. The other standard for water quality certification which was identified as an issue was compliance with state statutes, regulations and criteria otherwise applicable to activities needing water quality certification (608.9(a)(6)). In the present case, this would be the tidal wetlands and protection of waters permit requirements. As discussed in the preceding conclusions, a number of these are not met.

RECOMMENDATION

I recommend that the application be denied without prejudice to pursue a new application for shoreline protection structures located farther south on the site. A bulkhead at or above the mean high water line would be permitted by the Department Staff. Other construction alternatives, which would accomplish the erosion control in a manner that complies with the permitting standards, should also be considered.

I further recommend that, if the Applicants wish to pursue a new application, the current location of both the mean high water line and the boundary of coastal shoals, bars and flats be located according to the definitions of these terms, so that the application can be prepared and reviewed with this information available.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: February 28, 2000

1 Presumably this is a distance measured horizontally.

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