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Hudson River Park Conservancy - Ruling, Noember 30, 1998

Ruling, Noember 30, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Application of the HUDSON RIVER PARK CONSERVANCY, a subsidiary of the
New York State Urban Development Corporation d/b/a Empire State Development Corporation for
permits pursuant to Articles 15 and 25 of the Environmental Conservation Law and
Parts 608 and 661 of Title 6 of the New York Compilation of Codes, Rules, and Regulations,
and a § 401 Water Quality Certification in connection with the construction
of a new park on the west side of Manhattan from Battery Park to 59th Street

RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES

Application No. 2-6299-00004/00001

Background and Project Description

Introduction

HRPC, a subsidiary of the New York State Urban Development Corporation d/b/a Empire State Development Corporation (ESDC), has applied to the Department of Environmental Conservation (DEC or Department) for a tidal wetlands permit pursuant to Article 25 of the Environmental Conservation Law (ECL) and Part 661 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR), a protection of waters permit pursuant to ECL Article 15, and a water quality certification pursuant to § 401 of the Clean Water Act in connection with its proposal to construct a 550-acre park consisting of piers, upland, and water along five miles of the Hudson River from Battery Park to West 59th Street. Pursuant to Article 42 of the Executive Law and 6 NYCRR § 617.11(e), the Department must also make a determination whether the permitting of this project is consistent with New York City's local waterfront revitalization program. The project also requires permits from the U.S. Army Corps of Engineers.

This project requires these approvals because of the proposals to replace and reconstruct thirteen piers as recreational and ecological structures (portions of piers to be severed from the bulkhead or eastern portion of a pier and planted to establish and attract native species and birds), to repair the bulkhead, and to provide mooring facilities, get-downs, and water taxi landings. These activities would take place in the Hudson River in the area bounded on the south by the north bulkhead of Battery Park City, on the north by a project limit line extending into the river from the foot of West 59th Street, on the west by the U.S. Pierhead line, and on the east by and including the existing bulkhead and high water line.

Evolution of Project

What had once been a thriving commercial port along the shores of the Hudson River on the west side of Manhattan, became deteriorated with little viable public access to the waterfront. In its place, scattershot development, including various waterfront municipal and private enterprises occurred along the waterfront - mainly unrelated to the river. After the Westway highway project met its demise in 1985, Governor Cuomo and Mayor Koch appointed the West Side Task Force to make recommendations regarding the reconstruction of the West Side Highway and the future of the waterfront. In its final report in January 1987, the Task Force recommended the construction of a six-lane, at-grade urban boulevard and a public esplanade with a "continuous walkway, a bicycle path and other active and passive uses coordinated to draw people to the waterfront." Subsequently, the New York State Department of Transportation went forward with the Route 9A highway project that is currently under construction and includes the road and the bicycle/pedestrian path.

In 1988, the Governor and Mayor established the West Side Waterfront Panel to develop design guidelines and a financing mechanism for a Hudson River esplanade, to make recommendations regarding the future of the piers and the waterfront area, and to coordinate these efforts with the Route 9A construction. The Panel's recommendations were based upon the report of the Task Force and suggested extending the park to W. 59th Street, restoring thirteen piers, and placing limitations on development at the waterfront. Working with various community, business, and government organizations, in 1990, the Panel issued a report entitled "A Vision for the Hudson River Waterfront Park." Included in this vision statement was the recommendation that a new entity be devised to oversee the planning, design, and creation of the park. As a result, the Hudson River Park Conservancy was established in May 1992 when Governor Cuomo and Mayor Dinkins entered into a memorandum of understanding that directed HRPC to assess, design, and construct a park along the Hudson from Battery Place to West 59th Street.

HRPC retained consultants to design the park and each community board also selected landscape architects that were retained by HRPC to serve as community liaisons. From 1994-1995, HRPC held over one hundred community meetings to obtain comments on the design process. In May 1995, HRPC completed the Concept & Financial Plan that identified activities and uses for different areas of the park and this plan along with the Design Guidelines Master Plan (DGMP) served as the basis of the environmental impact statement (EIS) which was released in draft in April 1997 and finalized in July 1998.

After the completion of the Concept & Financial Plan, HRPC started work on the DGMP which set out design alternatives for different areas of the park and provided the elements and themes that would be incorporated into the park. This process also involved many community representatives and various organizations by participation in five Design Alternatives Open Houses in December 1996 and January 1997. As a result of comments received, HRPC modified the DGMP between January and July 1997. The draft DGMP (issues conference exhibit 14) was widely circulated for public comment at the end of July 1997 and additional public hearings were held. The draft DGMP begins by stating the planning goals, the influences on the design process, history of the Hudson River, and describing certain design criteria for various components of the park. This document also contains drawings of each segment of the park, enlarged drawings of each of these segments, and detailed drawings that show features such as the types of paving to be used. In October 1997, the Board of the HRPC directed certain changes to be made to the DGMP based upon the input received. The final DGMP incorporates these changes but had not been printed as of the conclusion of the issues conference on October 23, 1998. Instead, subsequent to the first session of the issues conference in these proceedings, HRPC distributed copies to the parties of the DGMP that contained handwritten revisions reflecting the HRPC Board's changes ( issues conference exhibit 15).(1)

Summary Description of Project

The proposed park will have a continuous waterfront esplanade and incorporate 13 public piers - Piers 25, 26, 34, 42, 45, 46, 51, 54, 62, 63, 64, 84, and 97. In addition, upon relocation of the existing tow pound at Pier 76, one-half of this location will be used for passive and active public open space. At least 80 percent of the other piers will be for active and passive open space with not more than 10 percent of each pier's surface covered by enclosed structures. At Pier 26, an enclosed structure will be limited to 15 percent of the pier surface and at Pier 64 the existing structure will remain. At Pier 40, no less than 50% of the surface will be for passive and active open space. Parks will be established at the Gansevoort Peninsula (after the New York City Department of Sanitation's facility is relocated), at 23rd Street (Chelsea Waterside Park), and between 54th and 57th Streets (Clinton Cove Park). Four ecological piers are planned (Piers 32, 56, 95, and a portion of 46) which would not be accessible to the public and which would provide wildlife habitat through the establishment of native species plantings. Pier 26 and the adjacent area are to have an estuarium and demonstration gardens of estuarine plants for educational and research purposes.

The park is proposed to include a combination of active and passive recreational facilities that include boating through the establishment of mooring locations, boat launches, landings for water taxis, and ferries. The DGMP also plans for get-downs - areas where people can get access to the water's edge - and lookouts over the water. The park is to have 10 major entrances and include concessions incidental to public access such as limited food, sports rentals, and park information. The HRPC represents that there will be no filling involved in this project and the Department staff has proposed a permit condition that specifically prohibits such activity. HRPC calculates that the project will result in a reduction of more than five acres of decking in the project area and a decrease of impervious surfaces by 26 acres with the replacement of asphalt with grass in the upland area. The project also calls for the elimination of a number of non-water- dependent commercial and municipal uses in the project area such as parking garages. See, FEIS, pp. 1-12-1-19.

Hudson River Park Act

In June 1998, the Legislature passed the Hudson River Park Act that creates the Hudson River Park and the Trust to oversee it. Governor Pataki signed this bill into law in September 1998. The HRPA sets forth that the creation of this park is a matter of state concern and in the public interest because it will address the blighted conditions that exist in the area resulting in increased public access to the waterfront, growth in tourism, and stimulation of the economy. While establishing the park for public recreation, culture, and leisure, the law prohibits the establishment of an amusement park, manufacturing and commercial activities except to the extent they are incidental to park use, and gambling. As described in the section above summarizing the physical components of the project, the Act requires that not less than fifty percent of the footprint of Pier 40 shall be for passive and active public open space, that the city use its best efforts to move the vehicle tow pound from Pier 76, and that upon removal of the NYC Department of Sanitation facility from the Gansevoort Peninsula, that area shall be used for park purposes. Other areas are addressed similarly. Proceeds from concessions to the Trust or the State shall be used for the maintenance of the park.

The HRPA provides that the Trust will be a public benefit corporation comprised of membership appointed by the Governor, Mayor of New York, and Manhattan Borough President including representatives of DEC, the Office of Parks, Recreation, and Historic Preservation, as well as not-for-profit, non-governmental environmental or civic organizations. The Act also establishes a Hudson River Park Advisory Council comprised of community, park, environmental, civic, labor and business organizations, and elected officials representing communities neighboring the park. This entity is to make recommendations to the Trust and hold public meetings regarding the planning, design, construction, and operation of the park.

The Act also provides for the establishment of this area as part of the Hudson River Park Estuarine Sanctuary based upon the identification of water areas within the park as important habitat for species including striped bass. This area will be subject to the jurisdiction of the Department, and the Trust will establish a management plan for this area in consultation with DEC, the New York City Department of Environmental Protection, and other institutions that will address conservation of the marine resources in the area, environmental education and research, public recreation, authorized commercial maritime uses, and other water-dependent uses permitted in the water section under the Act. The plan will be subject to DEC approval.

The Act prohibits filling in the river but permits floating structures, lateral stabilizing elements to secure these structures, repairs to the bulkhead, piers and other structures, and habitat restoration but limits coverage of the water section to eight acres at any one time. Buildings or other structures placed on a floating structure may not exceed one story and must be for a water dependent use. Despite these authorizations, the Act also clarifies that these actions are subject to review under Article 15 of the ECL by the Department, and the restrictions in the HRPA, and are also subject to the State Environmental Quality Review Act (SEQRA). The new law acknowledges the work already done by HRPC and directs that upon its constitution, the Trust shall continue with the ongoing regulatory processes so that there is "no interruption or impediment . . . as a result of this act."

As a result of this law's enactment, certain proposals that were originally part of the park have now been modified or withdrawn such as the wholesale distribution market considered as one option for Pier 40. There has also been the addition of Thomas F. Smith Park, half of Pier 76 upon relocation of the tow pound and the land area bounded by the southern boundary of W. 54th St, the Pier 94 headhouse, and Route 9A . See, issues conference exhibit 11, General Project Plan and Memorandum of July 16, 1998 re: Consistency of Hudson River Park Plan with HRPA. The Act also specifies that half of Pier 76, and Piers 78, 88, 90, 92, and 94 and their associated upland areas are not part of the park and any future proposals regarding those areas will be subject to their own environmental review.

State Environmental Quality Review Act Status

The Empire State Development Corporation served as the lead agency for review of this project pursuant to Article 8 of the ECL, SEQRA and New York City's Environmental Quality Review (CEQR). As noted above, a DEIS was prepared and the FEIS was completed in May 1998. The applicant has presented the FEIS as part of its application to the Department and it was marked as issues conference exhibit no. 8 in these proceedings. At the issues conference held on September 18, 1998, all parties agreed that pursuant to 6 NYCRR § 624.4(c)(6)(ii)(b), no issue that is related solely to SEQRA and not otherwise related to the Department's jurisdiction will be a subject of these proceedings.

Legislative Hearing and Public Comment

A notice of public hearing, dated July 15, 1998, was published in the Department's Environmental Notice Bulletin of July 22, 1998 and the July 28, 1998 edition of The Daily News. As announced in the hearing notice, a legislative hearing was held in the evening of September 17, 1998 at the College of Insurance in lower Manhattan. There were over 100 people in attendance of which 43 individuals spoke. The speakers were almost evenly divided in favor and in opposition to the proposed project. Among the speakers were two sponsors of the HRPA, Senator Franz Leichter and Assemblyman Richard Gottfried, who both stated that the park would ensure that the waterfront and the wildlife habitat were protected from development and provide public access to the Hudson. They also pointed to the bipartisan nature of the HRPA and the strong support from many environment groups. These comments largely reflect what the other 16 speakers in favor of the project stated - that the river had been for too long inaccessible to the public; the damage to and deterioration of the piers would be halted through this project; the adjacent communities were in great need of more parkland; and the park would protect the waterfront from filling and commercial development.

Those who opposed the project stated: that it was not a "true" park but rather a means of commercializing the waterfront that would block public access to the Hudson River; that the park could not pay for itself without significant commercial development; the ecological piers would collapse into the water; the project failed to consider the historic buildings on West Street; the project plans did not provide enough details; the plan would result in habitat destruction; there was improper segmentation of the project; cumulative impacts of this and other projects on the Hudson River were not considered; a public authority should not have jurisdiction over a public park; the project would lead to too much commerce and too many tourists in the vicinity; motorized boats would be detrimental to the area; the project is too expensive and all that people wanted is a simple, inexpensive green park; and the EIS is defective and incomplete. Several speakers also mentioned the negative response of three federal agencies - the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Environmental Protection Agency - in their initial review of this project.

Among those who spoke against the project was Marcy Benstock of the Clean Air Coalition who stated that the project must be considered as a whole and that it is a "patchwork quilt of Westway." She argued that the river should not be included in the park because it gave authority over the Hudson to an authority. Ms. Benstock stated that there was no need for more marinas - plenty of them were already suffering financially in the lower Hudson. She also maintained that there was no need to have any part of the project in the water because it was critical habitat for coastal fisheries. She stated that the HRPA was riddled with loopholes and should be repealed and should not take precedence over longstanding law. Assemblywoman Deborah Glick also spoke against the park. She stated that last-minute modifications to the project did not provide sufficient community notice and consequently, the legislative hearing might be illegal. She agreed with other speakers who argued that the project was illegally segmented and would damage the habitat. She argued that there was not sufficient detail presented including the exact number of pilings that will be placed, the design of the concessions and balconies, and the extent of activities in the mooring field. She also criticized the marina at Pier 40 (this element has been withdrawn from the project) and the adverse impacts that she said would result from the ecological piers. She maintained that the interpier space should be protected by repair to original piers to prevent continued deterioration.

Overall, most speakers indicated that a park was needed in this area but those opposed to this project maintained that it was too invasive and commercial. Among those who spoke in favor of the project, some did raise criticisms of the Pier 40 marina, the mooring field at Pier 25, and the floating bridge between Piers 25 and 26.

Issues Conference

The issues conference was held on September 18 and October 23, 1998 at the College of Insurance in lower Manhattan. The purpose of the conference was to determine what issues bearing on permit issuance would require adjudication and who, among the petitioners for party status, would participate in an adjudicatory hearing, should one be required.

The applicant, HRPC, was represented by David Paget, Esq. and David Yudelson, Esq. of Sive, Paget, and Reisel. Noreen Doyle and Michael Bradley of HRPC also attended the issues conference. Regional Attorney Laurieann Silberfeld of DEC's Region 2 office represented the staff along with Assistant Regional Attorney Udo Drescher. Regional Permit Administrator John Ferguson and Stephen Zahn of the Marine Resources Program were also present. For the Hudson River Park Alliance, the Environmental Defense Fund and the Natural Resources Defense Council (hereinafter collectively referred to as the Alliance), attorneys Albert Butzel and Arthur Schwartz of Kennedy, Schwartz, & Cure appeared. Hudson River Park Alliance Executive Director Andrew Darrell also attended. Douglas H. Ward, Esq. of Ward, Sommer & Moore appeared on behalf of the Friends of the Earth, New York City Clean Air Campaign, the West Village Committee, Inc., and the Federation to Preserve the Greenwich Village Waterfront & Great Port (hereinafter collectively referred to as Friends). Ms. Marcy Benstock was also in attendance on both days of the issues conference; John Mylod was present on the October 23rd session.

Friends' Request for an Adjournment and HRPC's Production of Additional Materials

Timely filings for party status were received by the Office of Hearings and Mediation Services (OHMS) from the Alliance and Friends. Prior to the submission of Friends' petition, by letter dated September 10, 1998, Mr. Ward requested that the ALJ adjourn the issues conference and the due date for party filings. Mr. Ward based this request upon the Governor's signing of the HRPA and because Friends contended that material elements of the application had not been provided to them. I denied the request but allowed a discussion of these matters to occur at the issues conference.

Friends' theory regarding the passage of the HRPA is that the Act establishes a new entity - the Trust - that has yet to be formed and will be responsible for the Park and this fact combined with other changes to the plans would make the current proceedings irrelevant. With respect to the lack of access to certain materials, Friends argued that they had not had an opportunity to review HRPC's current DGMP and that certain aspects of the proposal were subject to change. In addition, Friends and the ALJ raised additional concerns regarding the applicant's service of a number of materials only two days prior to the issues conference. These matters were discussed at the issues conference on September 18. At that time, Mr. Paget explained that the modifications reflected in the materials addressed the withdrawal of the marina at Pier 40. In addition, the applicant stated that the package that was sent days before the issues conferences included detailed drawings for the first segment of the project (Segment 4) and other clarifications. See, issues conference exhibits 4a-4x.

The applicant, staff, and the Alliance opposed any adjournment of the issues conference, stating that there were not significant changes reflected in these materials to warrant a delay. In addition, these parties noted that the Act indicates that the process should not be forestalled as a result of the impending establishment of the Trust. With respect to the Friends' argument that the final DGMP had not been supplied, the applicant explained that there had not yet been a printing of this document but that Friends along with the general public had access to the draft DGMP since July 1997. The Alliance representative stated that there had been an extensive public hearing process on this document at that time. However, the applicant agreed to supply a working copy of the final version of the DGMP and its appendix as well as the October 1997 HRPC Board of Director's Materials, and certain bathymetric data to the parties during the following week. Issues conference exhibits 15, 15a, 18a, 18b, and 18c. The applicant maintained that these materials did not contain any significant new information.

I determined that the enactment of the HRPA was not a basis to adjourn these proceedings based upon language in the Act that indicated that progress should not be forestalled. HRPA § 7(4). Instead, due to the belated production of certain relevant documents, I determined that the issues conference would be continued on a second day. The discussion on the second day was to be limited to any matters that would be contained in the new material that could not have been addressed by the petitioners earlier. In addition, Friends was permitted an opportunity to supplement its petition by no later than 3 weeks from the receipt of the applicant's additional materials - October 14. After a full day's discussion on the initial petitions and some additional matters raised by me, the issues conference reconvened and concluded on October 23. The issues conference record closed with the receipt of the transcript by this office on November 2, 1998.

Summary of Positions

The staff reiterated the position set forth in the notice of hearing - support for the application based upon its determination that there would be no significant environmental effects caused by the project and that there would be many beneficial environmental and public welfare results. During the course of the two-day issues conference, the staff deferred repeatedly to the applicant by stating its concurrence with HRPA's positions. In addition, the staff has previously made available copies of its draft permit which it maintains contains adequate protective measures to ensure compliance with the applicable laws and regulations. See, issues conference exhibit 5. With respect to specific matters raised by the petitions, staff's positions will be set forth therein.

The Alliance is comprised of 35 environmental and community organizations, in addition to the Environmental Defense Fund and the Natural Resources Defense Council, who seek full party status in these proceedings. Representatives for the Alliance stated their support for the project based upon its view of the significant positive benefits that the park will engender. The Alliance pointed to what it considers to be haphazard development that has occurred along the waterfront and advocated that this park will install a planned process that will minimize commercial and other private enterprises. The Alliance sees the park along with the HRPA as protective of the waterfront and the habitat that exists in the River through the specific plans set forth in the application as well as the Act's proscriptions on certain activities. The Alliance also stressed that this park has been in the making for many years and that due to the continued deterioration of the piers, it was essential to move expeditiously towards approval of HRPA's application.

While the Alliance stated its overall support of the project, it did refrain from supporting certain aspects - the Pier 40 marina, the Pier 25 mooring field, and the floating bridge connecting Piers 25 and 26. As stated above, the applicant has withdrawn its inclusion of the Pier 40 marina. With respect to the other two items, the Alliance stated that it did not seek a hearing on these matters but rather would continue to work in other arenas to address its concerns. See, issues conference exhibit 7. I did receive letters from Rutgers Environmental Law Clinic on behalf of the Baykeeper dated October 22, 1998 and from Environmental Advocates dated November 4, 1998 in which these organizations - who are members of the Alliance - stated their disagreement with the position of the Alliance in its opposition to an adjudicatory hearing. However, neither of these groups filed petitions that identified any specific issues for adjudication in conformity with 6 NYCRR § 624.5.

Friends is comprised of Friends of the Earth, a national environmental organization and NYC Clean Air Campaign, a local environmental organization that was very involved in opposing the Westway project in the mid-'70's-mid-80's. In addition, the West Village Committee, a local not-for-profit neighborhood improvement and preservation organization and the Federation to Preserve the Greenwich Village Waterfront & Great Port, a local not-for-profit organization concerned with historic preservation and the Hudson River are also part of this intervenor coalition. The Federation is comprised of 45 block associations, civic and business groups in the area in Lower Manhattan from Canal Street to 14th Street on the west side of the borough.

In its petition for full party status of September 11, 1998 and supplemental petition of October 14 (issues conference exhibits 6 and 6a), Friends sets forth its opposition to the Department's granting HRPC's application on several grounds. Annexed to the petition was the curriculum vitae of Dr. Michael L. Pace who is a scientist at the Institute of Ecosystem Studies in Millbrook, New York. With the service of the supplemental petition, this petitioner also applied to substitute experts and supplied the resume of Dr. Joseph DeAlteris, a professor at the University of Rhode Island in the Department of Fisheries & Aquaculture. I granted this request based upon the lack of prejudice to anyone at this stage of the proceedings.

Friends argues generally that the project will cause adverse impacts to the river and fish habitat therein. Friends states that while dredging is not indicated in the application and is also prohibited by a special condition in the draft permit, it believes that dredging will be required by necessity due to the nature of the activities planned and the shallowness of the involved waters. Friends also maintains that the application is not thorough in its analysis of the impacts from the modifications of the piers and pilings and construction of various structures. This petitioner also states that these activities will result in nonpoint source pollution of the Hudson River due to the work involved and the nature of the activities that will result from this project. Friends criticizes the plan for the ecological piers stating again that the plans are imprecise and that the potential use of "pesticides, herbicides and fungicides" would be harmful. Also, this intervenor argues that these piers could attract nuisance species resulting in undesirable conditions. Citing to letters from the Fish and Wildlife Service, the National Marine Fisheries Service (NMFS), and the Environmental Protection Agency (EPA), Friends argues that the construction of these facilities will result in damaging shading of the river and an increase in non-point source pollution.

Friends maintains that the number of vessels that will be moored and that will utilize the area of the Hudson River adjacent to the upland portions of the park will result in devastating impacts to the aquatic habitat caused by release of oil and gas products. Along with these claims, Friends also states that the permanent mooring of historic vessels in the park will cause sedimentation, loss of light and dissolved oxygen, and re-suspension of hazardous materials. Similarly, Friends argues that the "extensive piling replacement" activity will also cause damaging effects of reduction of light and oxygen and destruction of habitat values that live on or near the existing structures. This intervenor also argues that the bathymetric data supplied is not adequate.

In addition to its opposition to the project pursuant to Part 608 of 6 NYCRR noted above, this petitioner also maintains that the application is just generally too vague and subject to change for the Department to decide upon. The petitioner stresses that the current plan is only part of what will ultimately result and has therefore been improperly segmented. As one example of this practice, this petitioner alleges that the marina at Pier 40 has only been temporarily withdrawn. In a letter dated November 24, 1998 and received in the OHMS by fax on that same day, Mr. Ward states that contrary to statements made at the issues conference, Friends also opposes the Department's issuance of a tidal wetlands permit. While this petitioner does not identify any specific grounds for such opposition, it was my understanding throughout this process that Friends opposed any Department approvals of this project. In this letter, attorney Ward reiterates Friends claims regarding the inchoate nature of the project by referencing a recent New York Times article (11/19/98) on a proposal to site a branch of the Guggenheim Museum on Pier 40.

In its submissions, Friends reflects many of the comments made at the legislative hearing regarding concerns as to the nature of the authority that has control over the park, flaws in the HRPA, and the alleged inadequacy of the FEIS. However, I attempted to guide the discussion at the issues conference to matters that specifically relate to the applications pending before the Department. Obviously, issues as to the nature of the Trust or the HRPA reside within the jurisdiction of the Legislature and not before this agency. And, as stated above, because DEC is not the lead agency under SEQRA, the review under this statute is narrowed to those matters that relate to the specific permits that DEC is requested to issue.(2)

Discussion

Issues Ruling Standards

According to the Department's permit hearing regulations, an issue proposed by a prospective intervening party is adjudicable if it is substantive and significant. An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to a project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application, draft permit and related documents, the content of any petitions filed for party status, the record of the issues conference, and any subsequent written arguments authorized by the ALJ. 6 NYCRR § 624.4(c)(2). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project, or the imposition of significant permit conditions in addition to those proposed in the draft permit. At the issues conference there was much discussion about the standard of proof that a petitioner must meet in order to obtain party status. The ALJ declined Friends' request for post-issues conference briefs on this subject based upon the large amount of precedent that the DEC Commissioners have generated on this issue.(3)

While Friends was correct in asserting at the issues conference that this process is not meant to require a mini-trial of an intervenor's proof, the petitioner must raise "sufficient doubt as to the applicant's ability to meet all statutory and regulatory criteria such that reasonable minds would inquire further." See, In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988; In the Matter of Akzo Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996. Thus, in order to find an adjudicable issue, it is not sufficient to simply make general claims regarding an applicant's alleged failings. Rather, the petitioner must present a sufficient amount of specific information in the petition to lead to the conclusion that there was either insufficient information to make an assessment on the permit or that, given the information available, the legal criteria may not be met.

In this case, because the staff supported the application of HRPC, petitioners bear the burden of persuasion to demonstrate that any issue they propose for adjudication is substantive and significant. 6 NYCRR § 624.(c)(4).

As to the specific regulatory standards that pertain to the applications sought by HRPC, Part 608 requires that the issuance of a permit occur when the proposal is reasonable and necessary and it will not endanger the health, safety or welfare of the people of the State of New York. 6 NYCRR § 608.8. In the review process for Article 15 permits, staff is to consider (1) the environmental impacts of the proposal including effects on (i) "aquatic, wetland, and terrestrial habitats; unique and significant habitats; rare, threatened and endangered habitats; (ii) water quality . . .; (iv) water course and waterbody integrity, including such criteria as . . . turbidity, and sedimentation, (2) the adequacy of design and construction techniques for structures; (5) the water dependent nature of a use; (7) natural resource management objectives and values." 6 NYCRR § 608.7.

Section 608.9 concerns water quality certification required by § 401 of the Federal Water Pollution Control Act, Title 33 United States Code 1341. An applicant that is required to obtain a federal license or permit that may result in a discharge to a navigable water must apply for and obtain a water quality certification from DEC. This requires a demonstration that the project will meet, among other requirements, water quality-related effluent limitations.

Section 617.11(e) of 6 NYCRR also requires that the Department make a determination regarding a project's consistency with a locality's water revitalization program prior to permit issuance.

With respect to the tidal wetlands application involved (affecting a littoral zone north of W. 35th Street), § 661.9 provides that a permit can only be issued by staff if it determines that the proposed activity will be compatible with preservation and protection of tidal wetlands and will not have an undue adverse impact on the wetland values. The staff must also consider whether the project will be compatible with public health and welfare, is reasonable and necessary considering such factors as whether the plans are water dependent, complies with the development restrictions in § 661.6 and with the use guidelines in § 661.5.

Friends makes a number of general assertions with respect to the application such as the project does not meet the criteria in the regulations referenced above. Such general criticisms cannot serve as the basis for finding adjudicable issues without being grounded in more specific factual assertions. The following discussion will focus primarily on the more specific claims that Friends puts forward in its petitions.

Dredging

Friends claimed that while the application states there will be no such activity, the applicant also reserves the right to dredge if needed in construction. This matter was clarified at the issues conference by Mr. Paget who stated that any references to dredging in the FEIS should have been deleted as the bathymetric data gathered by the applicant revealed that such activity will not be necessary. In addition, staff has specifically included a permit condition that prohibits dredging. While Friends continues to maintain that dredging will be necessitated by the project, it has not come forth with any specific facts that would contradict what the applicant and staff have presented. Certainly, if the applicant was considering dredging but found it easier to exclude it at this time to avoid scrutiny, that would be improper segmentation. But, without any facts to support this speculation, I cannot find that dredging is an adjudicable issue.

Pier Modifications

The petitioner states that the pier modifications will cause negative environmental consequences due to the establishment of impervious surfaces and the human activities that will occur resulting in non-point source water pollution. In the supplemental petition, Friends state that the modifications are much greater than initially envisioned and that these activities will cause siltation, and the destruction of current habitat values. Included in this latter category, petitioner raises concerns regarding disturbance also to the habitat that is situated on the piles that will be replace or modified.

It was repeatedly stated by the applicant, without any contradiction by the petitioner, that with respect to impervious surfaces, this project will result in a small net decrease. The FEIS sets forth that there will be a conversion of nearly 26 acres of impervious surfaces in the upland area to a vegetated and landscaped area. There will be a decrease in decking of approximately 5 acres (Table 10-3, FEIS, p. 10-34; issues conference transcript [tr].50-51). These actions should result in a decrease in runoff. And, a number of activities that currently are located by the river, such as parking garages, salt piles, and other non-water related commercial and governmental uses which could be expected to have polluting effects resulting from the use of materials such as salt, oil, and grease, will be removed from the area. (See, tr., pp. 130-133).

It is not clear what petitioner has in mind regarding the negative effects of the human activities except with respect to boating which will be discussed below. As for the attraction of people to the park who engage in the usual recreational activities - eating, playing ball, running, bicycling, etc. - while there may be some impacts such as increased garbage there simply was no presentation by petitioner that justifies this claim as an adjudicable issue. The Act restricts any structures on the piers to one story and the applicant has maintained that the current weight-bearing capacity of the piers will not be increased. The FEIS addresses the water quality of the Hudson River noting that despite marked improvement since 1990, there remain problems with respect to water clarity particularly in the spring, low levels of dissolved oxygen in warmer months, high concentrations of nutrients, and variability in sanitary quality particularly after storm events. The FEIS also explains that "combined sewer outfalls [CSO's] are a significant source of bacteria and floatable pollutants." FEIS, p. 10-11. To address this latter issue, the City has embarked upon a CSO abatement program. There was no evidence put forward by the petitioner that human activities that will occur at the park, particularly on the piers, would result in significant and quantifiable negative impacts to the Hudson in contrast to the conclusions set forth in the FEIS.

The pier modifications which involve 13 public piers (25, 26, 34, 42, 45, 46, 51, 54, 62, 63, 64, 79, and 97), recreational areas at piers 40, 62, and 84, and ecological piers at piers 32, 46, 57, and 95 will involve cutting pilings to the mudline and pile wrapping, posting, pile driving, and bulkhead repair. The applicant confirmed at the issues conference that there will not be any more extensive work than what is addressed in the FEIS and application. The specific methods and restrictions on this work are detailed in Appendices A and D submitted with issues conference exhibit 4a.

What has changed based upon an examination of subsurface conditions of the pilings is that there will be more replacement than repair. See, Doyle August 31 letter, exhibit 4a. Thus, there will be limited pile encapsulation and more replacement of piles. Since modern materials (prestressed concrete and steel pole piles) that will be used for pile replacement are stronger than timber which is also subject to marine borer attack, fewer piles will be needed. And, as encapsulation, which involves filling a jacket with grout to protect the pile from marine borer, will be minimized, so too will any effects on the water from this activity. The use of these materials will also limit the amounts of treated wood that would be utilized. The FEIS explains that there will be local and short-term habitat disturbances due to suspended sediment concentration and siltation. FEIS, p. 10-49. However, the FEIS concludes that these effects will not have an undue result on the fishery because fish will avoid the project area and the area is well-flushed minimizing impacts. In response to petitioner's claims regarding the habitat situated on the piles, the applicant maintains and the staff supports the contention that any disturbance will be limited due to the phased approach of this project and that the area will be re-colonized in a very short time. FEIS, p.10-47. Friends has not raised specific claims regarding this issue to demonstrate a viable dispute.

The applicant presented graphic aerial photographs of the project area dating from 1991 to clarify the work to be undertaken. See, exhibits 16a-h. The areas were color-coded on the photographs to demonstrate the different work that is intended. Pink areas show where decking is to be removed; orange areas show where new permanent structures will be installed (overlooks, balconies, width expansions of the esplanade and a bridge between Piers 25 and 26); yellow areas show where buildings are to be constructed (3 in total at piers 25-26, pier 84, pier 96). These photographs plainly reveal that the dimensions of the project in terms of structures to be built are greatly limited.

Friends also disputes the propriety of the proposed eco-piers - these are portions of piers (Piers 32, 46, 56, and 95 - almost 5 acres) that will be cut off from public access, and covered with a frame, geotextile material, and landscaping fill in order to establish native plantings that might provide a habitat for waterfowl and other wildlife. Petitioner raises concerns regarding the use of pesticides, herbicides, and fungicides on these areas. The FEIS states that the use of native plantings will minimize such use and an integrated pest management plan (IPMP) will be developed prior to construction of these eco-piers. See, response to comments, FEIS, p. 24-60. Maintenance would require monitoring of these islands to ensure that fill will not seep into the River. Friends also maintains that these islands "may fail" or "attract nuisance species . . ." Here again, there is not sufficient support for these claims in light of the information in the FEIS regarding structural integrity and the use of an IPMP.

The petitioner also raised general concerns about the important aquatic habitat that exists in this area of the Hudson, citing to decisions on the Westway project - Action for Rational Transit, et al v. West Side Highway Project, et al, 536 F. Supp 1225, aff'd 699 F. 2d 614 (2d Cir. 1983); aff'd in part, rev'd in part, 701 F.2d 1011 (2d Cir. 1983); Sierra Club v. United States Army Corps of Engineers, 541 F. Supp 1367, rev'd, 695 F.2d 643 (2d Cir. 1982), app. dis., 697 F. 2d 297 (2d Cir. 1982); aff'd in part, rev'd in part 701 F.2d 1011 (2d Cir. 1983); Sierra Club v. United States Army Corps of Engineers, 590 F. Supp 1509, aff'd in part, rev'd in part, 776 F.2d 383 (2d Cir. 1985); cert. den. sub. nom. 475 U.S. 1084 (1986); Sierra Club, et al v. United States Army Corps of Engineers, 614 F. Supp 1475 (1985). In these decisions, Judge Griesa found and the appellate courts affirmed, that the interpier area (under and between piers) that was targeted to be filled in by the Westway project, was an important area for particularly juvenile fish to harbor due to the shelter provided by these areas. None of the parties dispute the importance of this area as marine habitat.

In the HRPA, to protect this important habitat, the Legislature established that this area is included in the Hudson River Estuarine Sanctuary. The law makes it explicit that this area is subject to the Hudson River estuary management program established in ECL § 11-0306 under the jurisdiction of DEC. In addition, as noted above, the Act requires that the Department, in cooperation with other government entities, develop a management plan for the water section and marine environments under the pier that will conserve the marine habitats in addition to providing education, recreation, and maritime opportunities.

There is no dispute that the interpier area that provides this important sanctuary is greatly deteriorated due to the state of the piers and pilings. It is apparent that without intervention, there will be little left of this shelter. When questioned about this seeming contradiction in position, petitioner responded that it was not suggesting an answer but rather that the applicant's plans were without adequate basis for evaluating potential harm to the habitat. But the FEIS does address these matters and while apparently the analysis is not to the petitioner's standards, Friends has not provided adequate support for its claims by specifically identifying, with the support of its expert(s), how the applicant is incorrect in its analysis or what is missing.

In addition to the draft permit conditions that require the use of best management practices to prevent construction materials, sediment, and debris from entering the water, no in-water work can occur during November 1st-April 30th - the critical overwintering period for the fish and certain birds that inhabit this area. And, as this work is to be conducted in phases over 5 years, work being conducted in the water will be limited in scope at any one time. Based upon some ambiguity in the FEIS, the application, and Attachment A to the August 31 letter (exhibit 4a) regarding the extent of individual pile removal, I suggest that staff give consideration to a permit condition that any pile removal will be only to the mudline. See, tr. 240-241. In addition, the applicant made clear at the issues conference that the load-bearing capacity of the piers will not be increased and I recommend that staff also entertain such a limitation as a permit condition. And, in order to address concerns regarding the use of pesticides, herbicides, and fungicides on the eco-piers, I suggest that a permit condition be added that requires the applicant to use IPM practices and the Department include this element in the sanctuary management plan.

Boating Impacts

As stated at the outset of these proceedings, the applicant has withdrawn the largest boating facility - the Pier 40 marina - from this proposal. Therefore, special condition no. 8 is to be deleted from the draft permit. Friends maintains that this is only a temporary measure and there is language in the August 31 letter that provides some basis for that conclusion. See, ex. 4a, p. 3. As pointed out by the applicant at the issues conference, this element has been reviewed in the SEQRA process as part of the project. Yet, we did not address it in any depth during the issues conference and should the applicant determine that it will go forward with Pier 40, there is no question that it would have to obtain permits from DEC that would be subject to public review. But, since it has been withdrawn such argument is speculative at this juncture.

The application still contains a proposal for a mooring field for 100 non-motorized craft (would accommodate 40 on average) and town dock (for 20 boats) south of Pier 25, a two-story boathouse at Pier 26 for non-motorized craft, a safe boating area between Piers 26 and 32, as well as a small public boat dock at Pier 42 (16 slips), a clubhouse at Pier 52 in the retired marine transfer station for boat storage and for hobbyists building small boats, a 60 slip public marina at Pier 53 with floating docks, historic vessels berth at Pier 54, floating docks slips (16-20 for day use only) and a boathouse (for 150 non-motorized craft) at Pier 66, a town dock at Pier 84 for day use only, a boat house for 150 non-motorized craft at Pier 96, a public boat dock on the south side of Pier 97 with accommodation for historic boats, as well as eight water taxi stops. See, FEIS at 10-39. Friends indicates that these facilities will dramatically increase boat usage in the area that will result in greater levels of shading and the entry of pollutants such as oil and gas on and into the river thus disturbing fish habitat. This intervenor also maintains that based upon the existence of shallow areas in the park, the draft of some historic vessels may require dredging.

Based upon the figures that occur in Table 10-5 in the FEIS, the numbers of motorized boats that will be moored at the park are limited. FEIS, 10-39. In addition, the applicant and staff have agreed to include in the permit conditions that appear in exhibit 4a, further limiting activities in the mooring field. See, exhibit 4a, p. 2. The parties agreed further that these limitations could extend to the entire park. They are as follows:

  • The mooring field at Pier 25 is limited to 40 boats.
  • No cigarette boats or large twin-engine boats with horsepower in excess of 500 hp per engine will be permitted in the park.
  • Pumpout facilities will be provided at Pier 25.
  • No fueling facilities will be offered.
  • No jet skis (rentals, storage or servicing) will be accommodated anywhere in the park.
  • All watercraft will be required to maintain a speed of 5 mph or less within the pierhead line throughout the park.
  • No facilities for boat repair will be provided.
  • Discharge of pollutants (such as oil, gasoline, detergents, plastics) will be prohibited through the park.
  • A boating safety and environmental education program will be established park-wide, as described in the FEIS.

Regarding these conditions, Mr. Butzel raised a concern regarding the Department's jurisdiction over pre-existing facilities. Staff will need to investigate the Department's jurisdiction over such entities and whether this is truly a concern; however, to the degree possible, to ensure the protection of the River and the sanctuary, I recommend these conditions be maintained.

With respect to the mooring of the Tamaroa or any other large vessel, the applicant answered Friends' concerns by stating that because there would be no dredging, these vessels would by necessity be moored in areas with depths that could accommodate them. As a result of receiving the bathymetric data, the petitioner maintained that there were shallow areas off the piers now projected for these historic ships. Friends posited that the location of these ships in these areas would require dredging, would displace or eliminate the water column, and cause turbidity, re-suspension of hazardous substances in the water column, and changes in the levels of dissolved oxygen. Exhibit 19, a map of soundings in feet of the Hudson and East Rivers from Governors Island to 67th street, does indicate relatively shallow depths in the waters off of Pier 54. This is confirmed by the bathymetric data in exhibit 18c. Yet, dredging is not permitted. I would recommend a permit condition that clarifies that large vessels, including historic ships, may only be berthed in areas that are deep enough to accommodate them without disturbing the river bottom. With respect to the smaller boats, because they will be located in areas of greater depths, these concerns should not apply.

The FEIS also provides that because there will be no walls built to accommodate the mooring field or other boating stations but instead floating platforms will be installed with wave attenuators, the waters in these vicinities will be subject to normal flow. These features will impede the accumulation of excessive nutrients in the boating areas. And, the permit now contains special conditions requiring that the applicant post signage that alerts boats to the prohibition of discharging untreated sewage into the water. See, special condition no. 9. The draft permit also provides that all rental and lease agreements for slips or use of docking facilities include conditions that each vessel with a holding tank shall be serviced by the pumpout facility and each vessel with a holding tank not dispose its sanitary waste in waters of the State. See, special condition, no. 10.

Concerns raised by commenters during the legislative session regarding the overwintering of birds in the area designated for the mooring field were addressed adequately by the applicant's representation that this area will be for seasonal use only.

In connection with boat usage, Friends raised the issue of shading on the river saying that "the significant number of vessels that may be moored throughout the project site . . . can shade large portions of the interpier area, thus significantly degrading this habitat for the resident and migratory fish species." See, Friends supplemental petition, issues conference ex. 6a, p. 5. The applicant has responded to this issue in its response to comments on the FEIS, p. 15 (in issues conference ex. 11) where it states that the boats will not be in the slips all year and that even assuming a maximum of 500 boats with average shadows of 200 feet each, the increase in shading would be approximately 2.2 acres. This calculation was done when the Pier 40 marina was still in the plans with a maximum of 320 boats, thus the 2.2 acres is greater than what would be expected currently. This amount of shading is less than the decrease in shading that will occur as a result of the decreased platform coverage of approximately 5.25 acres. Staff added that the boats will be out of the water (except for the historic vessels) during the winter months - the period considered to be the most critical to the marine habitat. Based upon this information, I find that the amount of shading is decreased by the project and therefore, Friends has not brought forth information that would lend support to its conclusion that these activities will be detrimental.

Segmentation and Friend's Other General Criticisms of Application

Friends argues that the application before the Department is not complete because it is only a beginning plan of a much larger development to come and thus would be impermissible segmentation in violation of ECL Article 8, SEQRA. The basis for this petitioner's views is not entirely clear although one might be sympathetic to some suspicion on the part of these citizens based upon their experience in the Westway project. See, e.g., Sierra Club, et al v. United States Army Corps of Engineers, 614 F. Supp 1475 (SDNY 1985). However, this process must address what exists currently and what has been presented to the Department. For example, in their November 24 letter, Friends' refers to an article in the November 19 New York Times regarding an idea to place a branch of the Guggenheim Museum at Pier 40. The article goes on to report that city, state, and local officials are not aware of any such plan. The applicant can't be asked to address speculative projects. The HRPA mandates that 50 percent of Pier 40's footprint be dedicated to active and passive open space and the DGMP does include the possibility of cultural facilities in a structure at Pier 40. (Issues conference ex. 15, p. 24.) In any event, as noted in the NY Times article of November 20, 1998, any such plans are quite premature.

While the unfortunate term segment is used in the application to describe the various stages of the park plan, the entire project was reviewed in the SEQRA process. And, those aspects of the plan that relate to the Department's permitting authority are subject to its review. Now, the details relating to the segment that is to be first constructed are greater than those presented for future phases. However, that status does not automatically mean that the applicant has segmented its plan improperly. See, e.g., Schultz v. Jorling, 164 AD2d 252 (3d Dep't 1990), app den, 77 NY2d 810 (1991) (Third Department held DEC was permitted to consider acquisition of nature preserve prior to detailed plan to manage it based upon the evaluations performed of likely outcomes).

In fact, the placement of the entire park plan in the application at this time is the opposite of segmentation. There has not been an improper separation of parts of the project. Rather, the entire plan has been submitted for review with very specific design details only for the first phase. There was no demonstration by petitioner that these details would affect DEC's review pursuant to its jurisdiction. And, the Department will have these detailed plans thirty days prior to the commencement of any phase pursuant to special condition no. 1 and no such work will proceed without DEC's approval. Petitioner's claim that the application before this agency is not the entire plan, without specific evidence, is simply not sufficient.

In support of its petition, Friends submitted copies of letters from three federal agencies - the United States Environmental Protection Agency, the National Marine Fisheries Service, and the Fish and Wildlife Service of the Department of the Interior - to the U.S. Army Corps of Engineers. In these July 1998 letters, these agencies raise a number of concerns regarding the permitting of this project. However, as pointed out at the issues conference, these parties did not appear in DEC's proceedings and there is no indication as to whether they had access to the full application including the FEIS at the time that the letters were sent. It is apparent, based upon exhibit 4a, that the applicant has entered into discussions with the federal entities to address concerns. In any event, without notification and participation by these agencies, the Department cannot presume to address their concerns.

Friends maintains that the application including the FEIS is flawed because it does not sufficiently examine impacts to the Hudson River. However, this intervenor has failed to demonstrate how this is so beyond making general claims regarding the alleged insufficiencies. While the two experts that Friends retained at different points in this process appear well qualified to address aspects of the effects of this project, this petitioner did not bring such expertise to bear in presentation of its claims. I cannot conclude that a more in depth review of impacts concerning the mooring of boats or the pier repair could not be performed. However, it is clear that HRPA did address, in the FEIS and other related documents that have been made a part of this record, all of the anticipated impacts. Thus, for a petitioner to establish that there is a significant and substantive issue to address at a trial-type hearing, it was incumbent for it to come forward with more factual information to support its claims then to merely make vague and conclusory criticisms.

With respect to Friends' other arguments regarding the deficiencies of the HRPA or the Trust, I refer the reader to those earlier sections of this ruling where I address these issues.

Party Status

It is clear that both the Alliance and Friends have an environmental interest in this application and there were no objections voiced by any party to the standing of either group. However, because I find that the Friends has not raised any adjudicable issues and the Alliance sought party status only so that they could participate in any proceedings should they occur, there is no reason to grant party status to either group.

Conclusions and Recommendations

Based upon all the information presented in the application, including the FEIS, and other documents that were made part of the issues conference record and the petitions as well as the discussions held on two days at the issues conference, I conclude that there are no issues for adjudication. The applicant has demonstrated sufficiently that it will meet the standards for issuance of permits and the water quality certification pursuant to Articles 15 and 25 of the ECL and Parts 608 and 661 of 6 NYCRR by demonstrating that there will be minimal impacts to the aquatic, wetland, and terrestrial habitats, and water quality.

The FEIS and the Joint Application submitted to the Department include the applicant's statement of consistency with State and New York City's Local Waterfront Revitalization Program and Policies. The City's LWRP includes 44 statewide policies as well as 12 policies specific to the City. Without reciting what is in the application materials, it is clear that this project will meet and advance many of these policies including those to restore deteriorated waterfront areas; improve urban shorelines; protect habitat; expand recreational uses; reconstruct erosion control structures [the bulkhead]; provide for public involvement in decisionmaking; increase public access to waterfront; prevent impairment to scenic resources; and control of stormwater runoff. Because federal permits are also involved in this project, the New York Department of State has also reviewed HRPC's consistency certification and expressed its concurrence with it on September 29, 1998. Therefore, I recommend that the staff issue a coastal consistency certification finding that this project will not substantially hinder the achievement of any coastal policy or purpose and will, whenever practicable, advance coastal policies.

The HRPA greatly limits the amount of non-water related activity that will take place adjacent to the waterfront. The park will diminish impervious surfaces and safeguard the interpier area by rehabilitating deteriorating piers. The proposed work to repair and replace piers and the bulkhead does not involve any filling or dredging and is consistent also with regulations governing activities in tidal wetlands and adjacent areas. And, the plan will encourage more recreational use of the river and provide public access to the Hudson River in a manner that has not existed for decades. While the FEIS does address short-term impacts on the river habitat, these appear de minimis in light of the tremendous benefits to the public and River that should result. Therefore, the staff should proceed to issue the permit to HRPA subject to the following.

As discussed above at p. 16, I suggest that staff consider permit conditions that limit any pile removal to the mudline and that the load-bearing capacity of the piers will not be increased beyond their historical limits. In order to address concerns regarding the use of pesticides, herbicides, and fungicides on the eco-piers, I recommend staff entertain a permit condition that requires the applicant to use IPM practices and the Department include this element in the sanctuary management plan. In addition, the staff and the applicant have agreed that the restrictions on uses set forth in issues conference exhibit 4a regarding the mooring area south of Pier 25, may be added to the permit and extended to the entire park. As indicated in the discussion of these measures on pp. 16-17, the staff will need to address the relationship of these measures to any pre-existing activities. To clarify that historic vessels will only be berthed in waters that can support them without dredging, I recommend staff consider a permit condition that states that these historic ships may only be berthed in areas that are deep enough to accommodate them without disturbing the river bottom.

Appeals

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner John P. Cahill (NYSDEC, 50 Wolf Road, Albany, New York 12233) on an expedited basis, within five days of the disputed ruling, pursuant to 6 NYCRR § 624.8(e)(1). I will extend the period for appeals; written appeals may be filed by December 15, 1998; replies to the appeals may be filed by December 22, 1998. Any requests for adjustments to this schedule must be made to Chief Administrative Law Judge Daniel E. Louis (518-457-3468).

Filings must be received by the Commissioner by the dates indicated. The parties shall ensure that transmittal of all papers is made to the others on the service list including two copies to the Administrative Law Judge at the same time as it is made to the Commissioner. No filings by telecopier will be allowed or accepted. Appeals should address the ALJ's ruling directly, rather than restate a party's position. To the extent practicable, appeals should also include citations to pages in the transcript or to specific documents.

The parties are advised that if the Commissioner's interim decision certifies an issue for adjudication, this matter will proceed to an adjudicatory hearing. In that event, we will set a schedule for the hearing and for prefiled expert testimony.

_____________/s/_____________
Helene G. Goldberger Administrative Law Judge

Dated: Albany, New York
November 30, 1998

To: Service List

1 In a letter dated November 24, 1998, received after the close of the record in these proceedings, Mr. Ward argues that the "updated" DGMP does not represent the extent of the project and that more documents should exist that reflect additional plans. These matters were addressed at the issues conference and the applicant explained that this DGMP reflects the plans as they exist currently. See, issues conference transcript, pp. 37-38, 78-89. This conclusion is reiterated in Mr. Paget's responsive letter of November 25, 1998.

2 By letter dated October 2, 1998, Carol Feinman of Friends of the Greenwich Village Waterfront applied for amicus status in order to present information regarding historic resources in the vicinity of the project. By letter dated October 6, 1998, I informed Ms. Feinman that her application was too late to be considered and I sent copies of her letter to the applicant and other parties. I also reminded Ms. Feinman that the Department's jurisdiction in these proceedings was limited to the permit applications pending before it.

3 The ALJ also declined Friends' request that the briefs address the relationship of the HRPA to these proceedings, finding that the Act was not so complex as to require that interpretation. Moreover, Friends had already made its position on this subject clear in its petition. And, assuming that the petitioner may elect to appeal this issues ruling, it will have another opportunity to raise those concerns to the Commissioner.

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