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Katz, Walter - Order, August 3, 1993

Order, August 3, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 15 of the New York State Environmental Conservation Law

- by -

Walter C. Katz, Jr.

Respondent

ORDER

Case No.
R5-1033-92-2

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated May 13, 1993, an enforcement hearing was held before Administrative Law Judge ("ALJ") Frank Montecalvo on June 23, 1993. The Department of Environmental Conservation (the "Department") appeared by Paul Van Cott, Esq., Assistant Regional Attorney. The Respondent, Walter C. Katz, Jr., appeared pro se.
  2. Upon review of the ALJ's Hearing Report (copy attached) and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendations which establish that the Respondent violated ECL Sec. 15-0505.1, by (directly or through an agent) having placed fill consisting of sand and stone in the wetland on Respondent's property adjacent and contiguous to Ballston Lake (Saratoga County), a navigable water of the state, sometime between July 19, 1989 and December 12, 1991, in an unpermitted location that is inundated at the mean high water level of the lake.

In determining an appropriate penalty, I have taken into account the circumstances of this case as established in the hearing record.

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

  1. Respondent Walter C. Katz, Jr. is found to have violated ECL Sec. 15-0505.1, by (directly or through an agent) having placed fill consisting of sand and stone in the wetland on Respondent's property adjacent and contiguous to Ballston Lake (Saratoga County), a navigable water of the state, sometime between July 19, 1989 and December 12, 1991, in an unpermitted location that is inundated at the mean high water level of the lake.
  2. Respondent is hereby assessed a penalty pursuant to ECL 71-1107.1 in the sum of Five Thousand Dollars ($5,000), Five Hundred Dollars ($500.00) of which is due and payable to DEC within thirty (30) days of receipt of this Order, and the Four Thousand Five Hundred Dollars ($4,500) balance of which is suspended for so long as Respondent complies with the terms and conditions of this order.
  3. Respondent, pursuant to ECL 71-1127.1, is enjoined from continuing his violation. In this regard, it is specifically Ordered that: (a) Respondent remove, to an upland area, all of the illegally placed fill; (b) after completing item (a), Respondent shall place, along the affected shoreline and immediately above the mean high water level of Ballston Lake, clean rocks as rip-rap or a retaining wall; (c) prior to commencing this work, Respondent shall notify DEC Staff, who shall delineate the mean high water level of Ballston Lake along Respondent's property with flagging; and (d) all of this work shall be subject to DEC Staff's review and approval and shall be completed within a reasonable period of time.
  4. All communications between Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 5 Headquarters, P. O. Box 296, Route 86, Ray Brook, NY 12977.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: August 3, 1993
Albany, New York

TO: Walter C. Katz, Jr.
VIA CERTIFIED MAIL W/RETURN RECEIPT
86 Lake Road
Ballston Lake, NY 12019

Paul Van Cott, Esq.
Assistant Regional Attorney
NYSDEC Region 5 Headquarters
P. O. Box 296, Route 86
Ray Brook, NY 12977

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

In the Matter of

the Alleged Violation of Article 15 of the New York State Environmental Conservation Law by

Walter C. Katz, Jr.
86 Lake Road
Ballston Lake, NY 12019

Respondent

Case No. R5-1033-92-2

HEARING REPORT

-by-

__________________________________
Frank Montecalvo
Administrative Law Judge

Proceedings

Pursuant to a Notice of Hearing and Complaint (copy attached hereto as Appendix A) dated May 13, 1993, duly served May 13, 1993, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 5 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against Walter C. Katz, Jr., 86 Lake Road, Ballston Lake, NY 12019 (the "Respondent"), in the matter of the alleged violation of Article 15 of the New York State Environmental Conservation Law ("ECL").

In accordance with the Notice of Hearing, an adjudicatory hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo on June 23, 1993 at NYSDEC Region 5 Offices, Route 86, Ray Brook, NY. Paul Van Cott, Esq., Assistant Regional Attorney appeared on behalf of the Department Staff. Walter C. Katz, Jr. appeared pro se.

Upon opening of the trial record, Staff and Respondent indicated that they had reached an agreement wherein Respondent stipulated to certain facts in exchange for Staff's amendment of the Complaint to reduce the payable portion of the requested penalty by $500 to $500. Staff stated that it would allow Respondent to withdraw his stipulation in the event that a greater payable portion of the penalty was deemed warranted by the circumstances. The Complaint was thereupon amended, and a document containing the stipulated facts was admitted into evidence. At Staff's request, the ALJ took official notice of the Commissioner's June 20, 1990 Civil Penalty Policy.

Testimony was taken and the hearing concluded on June 23, 1993. Staff presented as its witnesses the following DEC employees: Principal Fish and Wildlife Technician Les Saltsman, and Senior Wildlife Biologist Alan Koechlein. Respondent took the witness stand in his own behalf.

The record closed on July 22, 1993, upon receipt of the stenographic transcript.

The Charges:

Respondent is charged with violation of ECL Sec. 15-0505.1, by (directly or through an agent) having placed fill consisting of sand and stone in the wetland on Respondent's property adjacent and contiguous to Ballston Lake (Saratoga County), a navigable water of the state, sometime between July 19, 1989 and December 12, 1991, in an unpermitted location that is inundated at the mean high water level of the lake.

The Relief Requested:

For the violation, Staff requests that the Commissioner assess a penalty pursuant to ECL 71-1107.1 in the sum of Five Thousand Dollars ($5,000), Five Hundred Dollars ($500.00) of which shall be due and payable to DEC, and the Four Thousand Five Hundred Dollars ($4,500) balance of which shall be suspended for so long as Respondent complies with the terms and conditions of the order issued in this matter; and enjoin Respondent, pursuant to ECL 71-1127.1, from continuing such violation. Staff requests an Order that (a) Respondent remove, to an upland area, all of the illegally placed fill; (b) after completing item (a), Respondent shall place, along the affected shoreline and immediately above the mean high water level of Ballston Lake, clean rocks as rip-rap or a retaining wall; (c) prior to commencing this work, Respondent shall notify DEC Staff, who shall delineate the mean high water level of Ballston Lake along Respondent's property with flagging; (d) all of this work shall be subject to DEC Staff's review and approval and shall be completed within a reasonable period after the issuance of the order in this matter.

The Answer:

No answer was filed herein.

Findings of Fact ("Findings")

Findings 1 through 6, 8 and 9 are based on the Stipulation of Facts signed by Respondent and Staff at the hearing.

  1. Walter C. Katz, Jr., Respondent, resides at property owned by him on Lake Road in the Town of Ballston, Saratoga County, State of New York.
  2. DEC Staff conducted inspections at Respondent's property on Lake Road in the Town of Ballston, Saratoga County, NY on July 19, 1989, December 12 and 30, 1991 and October 8, 1992.
  3. DEC permit #5-4120-00034/00001-1, issued on August 4, 1989 to Respondent, authorized Respondent to place fill in a wetland on his property that is adjacent to and contiguous to Ballston Lake, a navigable water of the State of New York, and that is inundated at the mean high water level of Ballston Lake. An agreed upon copy of the DEC permit was attached to the Department's Complaint as Exhibit A thereto. The sketch attached as Exhibit A of the Complaint, although not-to-scale, fairly and accurately depicts Respondent's property and the physical relationship between the areas described thereon.
  4. The terms of DEC permit #5-4120-00034/00001-1 specified that the fill was to be placed adjacent to a previously filled portion of the wetland located to the south of Respondent's property, in an area 12 feet in width and extending 225 feet out from shore to the navigable waters of Ballston Lake.
  5. Sometime between July 19, 1989 and December 12, 1991, Respondent or his agent placed fill consisting of sand and stone in the wetland on Respondent's property that is adjacent and contiguous to Ballston Lake and that is inundated at the mean high water level of Ballston Lake.
  6. The fill was placed in an area of the wetland located to the north of where Respondent's DEC permit had authorized the placement of fill.
  7. The filled area was approximately 33 feet wide at its lakeward edge and widened toward shore to a width of approximately 108 feet. It extended approximately 225 feet out from shore to the navigable waters of Ballston Lake.
  8. The filled area described above had not been filled at the time of DEC Staff's July 19, 1989 inspection.
  9. Respondent did not obtain a permit from DEC authorizing him to place fill in the wetland adjacent to his property in a portion of the wetland to the north of where Respondent's DEC permit had authorized the placement of fill.
  10. Respondent did not obtain a permit from DEC authorizing him to place fill in the wetland adjacent to his property in an area approximately 33 feet wide at its lakeward edge, widening toward shore to a width of approximately 108 feet and extending approximately 225 feet out from shore to the navigable waters of Ballston Lake.
  11. Appendix B of this Report provides a not-to-scale but otherwise fair and accurate depiction of Respondent's property and the physical relationship between the areas described thereon, including the area where Respondent or his agent placed the fill as described in Findings 5, 6 and 7 above.
  12. Respondent was not able to discern an impact of the filling on fishing or wildlife, particularly since his grandson had recently caught an eighteen inch bass there. However, Respondent indicated that he was truly sorry for his error, particularly if he injured anything.
  13. The fill destroyed the fisheries habitat of the filled area. The fill also reduced the fisheries habitat value of the wetland that still exists between the filled area and the previously filled portion of the wetland located to the south of Respondent's property, because the fill blocks the flow of water through it. Although the fishing may be good now, the impacts of such filling would be cumulative with others. As wetlands are filled around the lake, the fish themselves will not be able to spawn because their spawning areas would have been filled. This will likely lead to an eventual decrease in the number of fish. Removal of the fill here is expected to result in the area quickly returning to good fisheries habitat.

Conclusions of Law ("Conclusions")

Personal Jurisdiction:

1. The Department has personal jurisdiction over Respondent. (This was uncontested).

Subject Matter Jurisdiction:

2. The Department has jurisdiction to enforce ECL Sec. 15-0505 pursuant to the terms thereof and other provisions of the ECL. (This was uncontested).

The Alleged Violation:

3. Respondent violated ECL Sec. 15-0505.1, by (directly or through an agent) having placed fill consisting of sand and stone in the wetland on Respondent's property adjacent and contiguous to Ballston Lake (Saratoga County), a navigable water of the state, sometime between July 19, 1989 and December 12, 1991, in an unpermitted location that is inundated at the mean high water level of the lake.

Discussion

ECL Section 15-0505.1 provides that no person shall place fill in wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the State of New York and that are inundated at mean high water level without a permit issued by DEC. Although Respondent had a DEC permit for similar activity, Respondent did not have a permit to fill at the particular location that was filled, therefore, such filling was without a permit.

Authorized Relief:

4. Because of the violation found in Conclusion 3 above, the Commissioner is authorized by ECL 71-1107.1 and 71-1127.1, to impose the relief requested in Staff's amended Complaint.

Discussion:

ECL 71-1107.1 provides that a violation of ECL 15-0505 shall be punishable by a civil penalty of not more than five thousand dollars. ECL 71-1127.1 provides that a person may be enjoined from continuing a violation of Article 15.

Recommendations

  1. The Commissioner should find that Respondent violated ECL Sec. 15-0505.1, by (directly or through an agent) having placed fill consisting of sand and stone in the wetland on Respondent's property adjacent and contiguous to Ballston Lake (Saratoga County), a navigable water of the state, sometime between July 19, 1989 and December 12, 1991, in an unpermitted location that is inundated at the mean high water level of the lake.
  2. The Commissioner should impose on Respondent a penalty pursuant to ECL 71-1107.1 in the sum of Five Thousand Dollars ($5,000), Five Hundred Dollars ($500.00) of which should be due and payable to DEC within 60 days of receipt of the Order, and the Four Thousand Five Hundred Dollars ($4,500) balance of which should be suspended for so long as Respondent complies with the terms and conditions of the order to be issued in this matter.

    Discussion:

    I concur with Department Staff's assessment that a payable penalty of $500 is appropriate here because Respondent does not appear to have undertaken the activity with any intent to commit a violation, he now realizes his mistake, and he is sorry for it.

  3. The Commissioner should enjoin Respondent, pursuant to ECL 71-1127.1, from continuing his violation, and Order that (a) Respondent remove, to an upland area, all of the illegally placed fill; (b) after completing item (a), Respondent shall place, along the affected shoreline and immediately above the mean high water level of Ballston Lake, clean rocks as rip-rap or a retaining wall; (c) prior to commencing this work, Respondent shall notify DEC Staff, who shall delineate the mean high water level of Ballston Lake along Respondent's property with flagging; and (d) all of this work shall be subject to DEC Staff's review and approval and shall be completed within a reasonable period after the issuance of the order in this matter.

    Discussion:

    I also concur with Staff's position that the filled area must be restored. It is important to ensure that filling and excavation activities conducted in New York's navigable waters, and/or adjacent wetlands, are regulated, and that inappropriate fill activities do not occur to the detriment of the environment. There was actual environmental damage here in the form of lost or reduced habitat value that needs to be restored. Also, it is important to set a precedent that fill placed unlawfully in navigable waters or adjacent wetlands be removed and the areas restored.

Appendices:

A. Notice of Hearing and Complaint

B. Diagram

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