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Leibner, Richard and Carol - Decision, March 16, 2000

Decision, March 16, 2000

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

In the Matter of the Application

- of -

Richard and Carol Leibner

for a Tidal Wetlands Permit pursuant to Environmental Conservation Law Article 25 (Tidal Wetlands) and Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Part 661 (Tidal Wetlands)

Application No. 1-4728-02263/00005

DECISION

March 16, 2000

DECISION OF THE COMMISSIONER

Introduction

This Decision decides the permit application of Richard and Carol Leibner (the "Applicant") who seek a tidal wetlands permit (Application No. 1-4728-02263/00005) from this Department pursuant to Article 25 of the Environmental Conservation Law and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Part 661.

The Applicant proposes to construct a dock extending from the northern end of an existing walk leading to a ramp and floats. The dock would consist of a 4' x 45' fixed walk elevated at a minimum of 4' above the grade of the marsh and have a pair of 3' x 4' steps to the ground level and on either side. The ramp would be 3' x 16' and lead to two 6' x 12' floats secured by four 8" diameter and variable pilings. Two 8" diameter pilings would also be installed approximately 12' west of the float. The proposed project would be located in Clam Pond, which is in the Village of Saltaire, Town of Islip, Suffolk County.

Background

On July 18, 1998, the permit application at issue was filed with the Department. By letter dated December 30, 1998, the application was denied. Citing various provisions of 6 NYCRR Part 661, the Deputy Permit Administrator stated:

We find the proposed fixed dock, as drawn by En-Consultants Inc. and last revised on 7/28/98, and as depicted in your plans will impact approximately 144 square feet of shoals and mud flats and littoral zone as a result of the dock construction. This will also place vessels using the floating dock in a [sic] area of insufficient water depths thus having the potential to impact a [sic] additional 288 sq. ft of littoral zone due to propeller usage. This will result in a significant loss of highly productive shoals and mudflats (SM), littoral zone (LZ), shellfish & benthic habitats, and finfish habitat used for foraging & as a nursery. Propeller turbulence and turbidity plumes will impact marine food production, fragment wildlife habitat, and eradicate marine habitat. The surrounding area's highly valued marine food production will also decline as a result of this propeller & turbidity impact.

Since your proposal does not conform to the above listed requirements of 6 NYCRR Part 661, the permit is hereby denied. (Emphasis in original).

On January 28, 1999, the Applicant requested an adjudicatory public hearing.

In July 1999, notice of the hearing was issued and published. Public comments were received. No petitions to intervene were filed. On August 24 and 25, 1999, a legislative public hearing, issues conference and adjudicatory hearing were held. The participants consisted of Department Staff (hereinafter "Staff") and the Applicant; no one else sought party status. On December 14, 1999, a Hearing Report prepared by Administrative Law Judge ("ALJ") Frank Montecalvo, was issued as a Recommended Decision. The cover letter accompanying the Hearing Report also asked Staff and the Applicant specific questions related to the issues in dispute. Comments on the Recommended Decision and answers to the questions were received on December 29, 1999, from Staff and the Applicant. On or about January 7, 2000, the Applicant submitted responses to the December 29, 1999, comments submitted by Staff.

Hearing Report

In his December 14, 1999 Hearing Report, the ALJ made numerous findings of fact about the area where the proposed project would be located including, inter alia, the shallow depths of the waters (generally two feet or less), the existence of eelgrass, seaweed, algae and clam worms offshore of the property, the presence of the Snowy Egret, the Mute Swan in waters adjacent to the property, a variety of crabs, juvenile flounder and fluke, and the expected presence of striped bass, winter flounder, scallops and razor clams. (Hearing Report, pp. 4,5). The ALJ also found that the proposed project, particularly the floats, would adversely affect the organisms, algae and vegetation under the floats, and eradicate the benefits provided by the algae and vegetation (e.g. hiding smaller fish) when such organisms die. (See id., p. 6). In addition, the ALJ acknowledged environmental concerns involving propeller wash and propellor dredging, which occur when people operate craft in shallow waters, but found that such practices were unlikely to transpire on these facts. (See id., p. 6). In his discussion, the ALJ stated that "[c]onsidering together the dock, ramp, floats, mooring pilings, and the incidental recreational boating, the record demonstrates no greater impact from the whole project than the sum of its individual parts (each of which are either not regulated, or regulated and compatible with tidal wetlands)." (Id., p. 7). The ALJ recommended that the permit be issued. (See id., p. 8).

Applicable Legal Standards

ECL §25-0102 provides that it is the public policy of the state " to preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social development of the state." Activities subject to regulation via a permit issued by the commissioner include, inter alia, "the erection of any structures or roads, the driving of any pilings, or placing of any other obstructions, ... and any other activity within or immediately adjacent to inventoried wetlands which may substantially impair or alter the natural condition of the tidal wetland area." (ECL §25-0401).

Any person proposing to conduct a regulated activity must file an application for a permit with the commissioner. (See, ECL §25-0402). The applicant bears the burden of demonstrating that the proposed activity will be in complete accord with the policy and provisions of the act. (See, id.; see also, Matter of McKinney, 52 AD2d 881 (2d Dept. 1976)). In evaluating an application for a tidal wetlands permit, the commissioner must consider the compatibility of the proposed activity with reference to "the public health and welfare, marine fisheries, shell fisheries, wildlife, flood and hurricane and storm dangers, and the land-use regulations promulgated under ECL §25-0302." (ECL §25-0403). Courts generally "give a great deal of deference to the determinations of the Department under the Act where based on scientific testimony as to the environmental value of the wetland, the prospect of injury to it, and the possibility of alternatives to altering it." (Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17 1/2, Environmental Conservation Law §25-0404, at 441-442). 6 NYCRR §661 implements the tidal wetlands land use regulations. A permit for a proposed regulated activity on a tidal wetland can be issued by the Department only if it is determined that the proposed activity:

  1. 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 wetlands area or adjoining or nearby tidal wetland 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 this Part, taking into account the social and economic benefits which may be derived from the proposed activity;
  2. is compatible with the public health and welfare;
  3. 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;
  4. complies with the development restrictions contained in section 661.6 of this Part; and
  5. 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. If a use is a type of use listed as an incompatible use in the use guidelines for the area involved, it shall not be undertaken on that area. (6 NYCRR §661.9).

Activities in or uses of a tidal wetland that are either subject to, or not subject to, permitting requirements are listed. See, 6 NYCRR §661.5. The use guidelines are classified into four categories; (1) a use not requiring a permit, (2) a generally compatible use, (3) a presumptively incompatible use and (4) an incompatible use). (See, 6 NYCRR §661.5(a)(1)-(4)).

Discussion(1)

The ALJ's recommendation that a tidal wetlands permit should be issued in this proceeding is inconsistent with the ALJ's own findings of fact, unsupported by the record, at variance with the goals of ECL Article 25, and omits an application of the applicable regulatory criteria to the facts. The ALJ's findings of fact include numerous statements acknowledging the presence of birds, marine life, aquatic organisms, and vegetation in the area of the proposed project, the adverse impact of the floats on organisms and vegetation, the shallow depth of the area, and the problems of propellor wash and prop dredging, which occur when people operate their craft in too shallow waters. (Hearing Report, pp. 4-6). The record is also replete with testimony from Staff that the proposed project is inconsistent with the policies and objectives of 6 NYCRR §661. In addition, the ALJ's analysis is improperly based, in large part, on a piecemeal or segmented review of the project, which evaluates individual components of the project but fails to consider the aggregate effect of the completed project.

Segmented Review of the Project

The Applicant's effort during the hearing to divide the environmental review of the proposal (H-2, pp. 120-121)(2), and the ALJ's support of the concept in his statement that "the record demonstrates no greater impact from the whole project than the sum of its individual parts (each of which are either not regulated, or regulated and compatible with tidal wetlands)" are rejected. Segmentation of the proposal into an evaluation of the individual components of the proposed project - stairs, ramps, catwalks, docks and pilings - is inconsistent with the applicable regulations and with the Department's general obligation to assess the potential environmental impacts of a project in its entirety.

The ALJ's analysis is flawed because it discounts the analysis required by 6 NYCRR §661.7(a), which expressly provides that even where a use to be undertaken in a tidal wetland may not require a permit ("NPN"), this is true only where "such activity does not involve a regulated activity."(3) Similarly, 6 NYCRR §661.4(aa) defines a "project" as "any action which may result in direct or indirect physical impact on a tidal wetland, including, but not limited to, any regulated activity." Where, as in the instant case, the activity under review is a regulated activity - the construction of an open pile catwalk and dock (6 NYCRR 661.5(b)(14))- the component parts lose any NPN status they may have had, and must be reviewed for potential adverse impacts and evaluated under the permit standards. More pointedly, simply because construction of individual components may be characterized as NPN or GCp, the analysis cannot end when the use of a particular component impacts or involves a regulated activity. This caveat to an NPN designation reflects a clear preference for evaluating the impact of the total proposed project and an aversion to assessing in a vacuum whether or not each isolated component is permissible.

Even under a segmented review, Staff testified that based on these facts, the proposed 144 square foot floating dock, (an NPN use at less than 200 square feet),(4) would require a permit because the proposed dock would at times rest on the bottom of the pond due to the shallow waters, causing shading, turbidity and compacting of organisms and grasses. (H-2, p. 166, 212-218). Such a "new activity" within a wetland "substantially alters or impairs the natural condition and function of the wetland" and is thus regulated. Similarly, the driving of pilings proposed here were not NPN "recreational moorings"(5) under 6 NYCRR §661.4(ee)(iii), and there was considerable testimony that the pilings would accommodate larger boats, and given the shallow depth of the water increase the likelihood of prop dredging, another regulated activity. (H-2, pp. 113, 130-131, 165-168, 221-222, 248-255).

Moreover, the application was not submitted for the purpose of obtaining a set of stairs or a catwalk, but to acquire a tidal wetlands permit "to construct a fixed dock" consisting of a 4' by 45' fixed walk, two 3' by 4' steps, a 3' by 16' ramp leading to two 6' by 12' floats secured by four 8" diameter pilings, and two mooring pilings approximately 12' west of the float. (Hearing Exhibit 1B, 8/24/99). (Emphasis added). A project's "individual parts" cannot be divided up, defined as comprising mostly NPN uses or uses generally compatible with the value of the tidal wetland and then construed to have less impact when viewed separately than when considered as part of the whole project. Drawing an analogy to the State Environmental Quality Review Act ("SEQRA"), courts tend to look with disfavor upon dividing the environmental review of an action in such a way that various segments of the project are addressed as though they were independent, unregulated activities needing individual determinations of significance. (See, Concerned Citizens for the Environment v. Zagata, 243 A.D.2d 20, 22 (3d Dept. 1998), lv denied 92 N.Y.2d 808; Schultz v. Jorling, 164 A.D.2d 252, 255-256 (3d Dept. 1990), lv denied 77 N.Y.2d 810 (1991)).

Standards for Permit Issuance

6 NYCRR §661.9 sets forth the standards for permit issuance. These standards, however, were never applied to the instant facts by the ALJ. Upon applying these standards to the facts presented here, it is clear the ALJ's recommendation cannot stand. The testimony is uncontroverted that the waters where the proposed project would lie are very shallow, ranging from 13" to 18" depending on the tide. (H-1, p. 110; H-2, p. 57, 61, 64). Staff's 16' Boston Whaler ran aground twice, 100' and 150' to 200' seaward of the proposed project, while conducting site inspections during August 1999. (H-2, pp. 68, 79-82). Staff testified that the proposed berthing area for the dock was 12' in width, with two mooring piles 12' west of the proposed docking facility, which would accommodate vessels 25' to 30' in length, and at least 10' in width. (H-2, pp. 203-206, 230-231). Vessels 25' in length generally require a minimum of 3' water depth, and boats 30' need 3'4" in depth. (H-2, pp. 205-206). Vessels of that size "would be hitting the bottom even at high tide knowing the range of Clam Pond's tidal range being roughly less than one foot." (H-2, p. 206). Staff did not believe boats of that size could be navigated through waters of those depths, and characterized the site of the proposed project as "an unsafe area for navigation." (H-2, p. 84, 85, 206). Although the applicant testified that he owned a kayak, and might get a rowboat or small motorboat (H-1, p. 70, 76), the proposed project consists, inter alia, of two 6' by 12' floating docks secured by four pilings and two mooring pilings 12' west of the floating docks, which could dock vessels much larger than a kayak. (H-2, pp. 130, 203-206). Regional Staff testified that the size of the proposed docking structure coupled with the shallow waters posed risks to swimmers and to boaters who would assume they had room to navigate and dock, causing such boats to run aground and possibly harm the occupants. (H-2, pp. 83-84, 232-234). In light of this testimony, the project cannot be found to be "compatible with the public health and welfare." 6 NYCRR §661.9(b)(ii).

The hearing testimony regarding the effect of the proposed project on the tidal wetlands at the site indicate the project does not meet permit issuance standards under 6 NYCRR §661.9(b)(i). Region 1 Staff, with extensive experience in wetlands inspections, described a variety of aquatic life at the site of the proposed dock and indicated a number of wetland benefits. Staff observed algae and submerged vegetation such as eelgrass and widgeon grass, which provide protection to bottom dwelling or 'benthic" organisms and serves as a nursery ground for commercial and recreational fishery species. (H-2, pp. 144-147). Staff also observed a Snowy egret, mute swans, silversides, krill fish, scallops, razor clams and clam worms, which serve as a food source for scavenging crabs, lobsters and other bottom feeders. (H-1, p. 144; H-2, pp. 93-94, 151-152, 156-159). Hearing testimony also revealed that Clam Pond is a productive shellfish habitat and an area that helps strengthen commercial and recreational fishing. (H-2, pp. 157-158, 224-229). Staff then gave extensive testimony that the proposed project would have adverse impacts on the tidal wetland. Generally, floating docks cause shading, which kills algae and vegetation, thereby affecting the benthic organisms and marine food production. (H-2, pp. 145-148, 218, 219). Similarly, the turbidity from the movement of the floats and from propellors would suffocate algae and vegetation. (H-2, pp. 85, 91-93, 145-148, 151-153, 161-166, 208-213). Staff stated further that there is a direct link between the application and the conditions described above because the application allows for vessels of a size that would cause propellor wash and prop dredging, and the structure itself would cause shading and adversely affect benthic organisms. (H-2, pp. 130-131, 145-148, 165-168, 213-222). The project would also adversely affect the wetland's wildlife and the wetland's ability to cleanse the ecosystem and absorb silt and organic material. (H-2, pp. 167-170, 215). Given this testimony, the proposed project is not compatible with the express statutory policy to preserve and protect tidal wetlands. (H-2, pp. 229-230).

The existence of other docks in Clam Pond is not dispositive as to whether a tidal wetlands permit should be issued in this case. (H-1, p. 101, 108; H-2, p. 184-185, 194). Permit issuance determinations are fact-specific decisions, and the facts and bases for permit issuance in these other instances are not articulated in this record - nor should they necessarily be required to, given that each are based on fact specific evaluations applicable to their site. Moreover, the cumulative impact of permitting decisions for structures like the one proposed is a reasonable factor for Staff to consider. (See, ECL §3-0301(1)(b)).

Finally, the record indicates that the proposed project is not "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." 6 NYCRR §661.9(b)(iii). Here, there are reasonable alternatives to the proposed project. There are existing beach areas, room for mooring in Clam Pond and a public mooring is available 400' to 500' east of the proposed project. (H-2, pp. 179-180, 234-235, 238). Alternatively, the project could be redesigned to minimize wetland impacts. If the Applicant's anticipated use of the project is only for a kayak or similar vessel, with no intent to dredge (H-1, pp. 70, 72, 76), a modified application consistent with those objectives may meet the permit issuance standards. The Applicant's consultant stated that a float or floats could be placed offshore and anchored with mushroom anchors rather than pilings, and a boat kept at that float. (H-1, pp. 157-158). Staff also acknowledged this alternative, as well as a pulley system. (H-2, pp. 235-236, 242).

In Staff's submission dated on or about December 29, 1999, Staff recommended that the proposal be modified as follows:

A four (4') foot wide walkway elevated a minimum of four (4') feet over the wetlands, ending in a stairway leading down to the water with a piling pulley system to which a vessel could be moored, or the structure can be used to hand-carry vessels (kayaks, canoes) down to the water.

The Applicant did not propose any alternatives.

Conclusion

The ALJ's recommendation for permit issuance is overturned because it does not comply with 6 NYCRR §661.9, and permit issuance is unsupported by the record. However, the Applicant is free to resubmit an application consistent with Staff's recommendations in its December 29, 1999 submission, or consistent with Staff's testimony.

For the New York State Department of Environmental Conservation

/s/
By: John P. Cahill, Commissioner
Albany, New York March 16, 2000

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In the Matter of the Application of

Richard and Carol Leibner

for a Tidal Wetlands Permit pursuant to Environmental Conservation Law Article 25 (Tidal Wetlands) and Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Part 661 (Tidal Wetlands)

DEC Project No. 1-4728-02263/00005

HEARING REPORT

-by-

/s/
Frank Montecalvo
Administrative Law Judge

THE PROPOSED PROJECT and PERMITS SOUGHT

Richard and Carol Leibner, 340 West 57th Street, New York, NY 10019 (the"Applicant") seek a Tidal Wetlands Permit from the Department of Environmental Conservation (the "Department" or "DEC").(6)

The Applicant proposes to construct a fixed dock extending from the northerly end of an existing walk leading to a ramp and floats. The dock will consist of a 4' X 45' fixed walk elevated a minimum of 4' above the grade of the marsh and have a pair of 3' X 4' steps to ground level on either side. The ramp will be 3' X 16' and lead to two (2) 6' X 12' floats secured by four (4) 8" diameter and variable pilings. Two (2) 8"diameter mooring pilings will also be installed approximately 12' west of the float. The Proposed Project would be located at 201 Sea Walk, Village of Saltaire, Town of Islip, Suffolk County, NY. (SCTM #0503-3-1-41).

PROCEEDINGS

The application was initially filed July 18, 1998. On December 3 0, 1998, DEC Region 1 Staff ("Staff') issued a Notice of Permit Denial. On January 28, 1999, the Applicant requested an adjudicatory public hearing.

On April 16, 1999, the DEC Office of Hearings and Mediation Services received Staffs request to schedule a public hearing. On April 19, 1999, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

The Notice of Public Hearing (the "Notice") was issued July 7, 1999, and was published in the July 14, 1999 issue of the DEC's Environmental Notice Bulletin, and in the July 23, 1999 issue of the Fire Island News. Notice was also directly mailed on July 7, 1999, to the Mayor of the Village of Saltaire, to the Supervisor of the Town of Islip, and to the Clerk of Suffolk County, as well as to other persons deemed interested in this proceeding. The Notice indicated that Staff propose to deny issuing the requested permit because they believe that:

"shallow conditions of the mooring area would cause a boat to sit on the bottom at low tide and result in "prop dredging" of the bottom habitat when gaining access or leaving the dock. (6 NYCRR Part 661.9(b)(1)(i)(ii)(iii))(7). Staff contend that the shallow nature of the waterway at this location will result in the need to dredge productive shoals/ mudflat/ littoral zone habitat should the proposed dock be installed. Staff believe that boats berthed at the proposed dock would regularly disturb valuable benthic habitat as they come into and leave the structure, resulting in undue adverse impacts to the present and potential values of this wetland area and the adjacent intertidal march area for marine food production, wildlife habitat, and other values." [footnote added].

The Notice required that petitions to intervene be filed by August 20, 1999, and that written public comments on the proposed project be received by the ALJ prior to the hearing.

The ALJ received 8 written comments and no petitions to intervene. The comments supported the proposed project, and came from neighbors. In general, those commenting perceived no environmental impacts from the proposed project. The existence of other similar structures on Clam Pond was noted, and being able to access one's property from the water was perceived as a right.

As advertised in the Notice, the ALJ convened the public hearing at 10:30 AM on Tuesday, August 24, 1999, at the Soldiers and Sailors Memorial Building, 102 East Main Street, Bayshore, NY I 1 706. DEC Staff were represented at by Craig L. Elgut, Esq., Assistant Regional Attorney. Richard and Carol Leibner were represented by Lark J. Shlimbaum, Esq.

At the public legislative hearing session, Diane Abell spoke on behalf of the National Park Service (NPS). Ms. Abell indicated the opinion that being able to reach one's boat via dinghy was all the access that is required. She indicated that docks from private property are prohibited by the Fire Island National Seashore District's regulations. For these reasons NPS opposes the application. Ms. Abell referred to a letter from NPS to the New York State Department of State (NYSDOS), which strongly objected to a proposed dock for Mr. Leibner as well as to any application to construct a private dock within the National Seashore boundaries. That letter (dated September 29, 1998 from Constantine Dillon, Superintendent, to Walt Meyer of the NYSDOS Division of Coastal Resources and Waterfront Revitalization, was presented to the ALJ by Staff) was not addressed to the ALJ, however it has been included in the file of public comments as a statement of the NPS' position. The letter asserted NPS' jurisdiction and its opinion that the proposed project did not meet federal requirements. Also submitted by Staff for inclusion with the public comments is an October 8, 1998 letter from NYSDOS to an official with the Army Corps of Engineers which requested coordination between regulating agencies. No other comments were received.

An Issues Conference was convened immediately following the public statement session. Only the Staff and the Applicant participated since no one else had filed for party status. An exhibits list was distributed and discussed to ensure that the relevant documents were in the record and properly identified. The reasons for the Staff s denial, as stated in the Notice, were identified as the hearing issue. The parties discussed their perceptions of what the hearing issue included and the extent to which evidence would be received regarding applications for similar projects in the vicinity of the proposed project.

The issues conference concluded and was immediately followed by the adjudicatory hearing. The adjudicatory hearing continued on August 25, 1999, and concluded that day upon completion of closing arguments. Motions for summary judgment were made by both parties upon completion of the Applicant's case. These were denied. The Applicant presented as witnesses: Richard Leibner, and Roy L. Haje. The Staff presented as their witnesses: Lawrence Pasciutti, Pamela Lynch, and Charles Hamilton. Both parties submitted exhibits into evidence as indicated on the Exhibits List (Attachment A below).

The record closed on or about October 22, 1999, upon receipt of the requisite number of transcripts.

FINDINGS OF FACT

Project Site and Setting:

  1. The proposed project would be located at 201 Sea Walk, Village of Saltaire, on Fire Island, Town of Islip, Suffolk County, NY (the "property"). The property is improved with a 2 story frame house, a one story frame building, connecting decks, and a walkway leading toward the shore. Mr. and Mrs. Leibner purchased the property about 2 years before the hearing, and have used it for recreation, vacation and as a part time residence. They intend to use the property more during the summer months as they get closer to retirement.
  2. The property's northern boundary fronts on what is known as Clam Pond, located off the south western portion of Great South Bay. It is a small brackish cove (subject to both salt and freshwater influences), and is considered to be a productive shellfish habitat.
  3. Public mooring is located approximately 400 to 500 feet to the east of the property. The nearest private dock to the property (the "Botbol" dock) is east of the property, about 150 feet (two houses) away. There is also a dock to the west of the property a bit further away.
  4. Vegetation on the property between the residence and the shore's high water line is heavily dominated by Phragmites (or common reed). Seaward of the Phragmites, between the apparent high water and apparent low water lines, is a soft white sand beach which has eelgrass washed up along the shoreline. Further seaward, low water is encountered at all times except during exceptional conditions.
  5. The waters adjacent to the property and along the shore in the vicinity of the property are shallow, being under 2 feet in depth. A person wading at a similar distance off shore from in front of the property to the Botbol dock would not notice a significant difference in water depth. On one occasion, water depths were measured at 1' 5 " at the end of the Botbol dock. Water depths in area of the proposed project do not pen-nit navigation by "larger" boats such as the Department Staff s 16 foot "Boston Whaler," which has a draft of approximately 24 inches, and which ran aground approximately 200 feet off shore on two separate occasions.
  6. The submerged surface from the shore at the property out to 60 feet offshore is generally white sand of rather uniform particle size. Beneath the white sand is darker material, brown to black. The sediment is inhabited by polychaete segmented worms (including the clam worm Nereis). Beginning 50 feet off shore of the property from the apparent high water line and extending in all directions there are sparse beds of eelgrass and widgeon grass together. Approximately 60 feet offshore is a patch of eelgrass and seaweed. These waters also contain green algae beginning at the shore and extending northwest and east of the property. The algae are Codium, also known as green fleece, and various filamentous algae.
  7. The Snowy Egret and Mute Swan have been observed wading or swimming in the waters adjacent to the property. The following organisms either were observed or may be expected to be found in the waters: young-of-the-year menhaden, krill, blue crabs, horseshoe crabs, silversides, stickle backs, and juveniles of flounder and fluke. Bluefish, striped bass, and winter flounder (commercially important species) are expected to use the area during high tide cycles. Razor clams and scallops (bivalves) are also expected to live in the waters.
  8. The worms are a food source for higher level organisms in the food chain such as scavenging arthropods, lobsters, crabs, scavenging fish and other bottom feeders. The scallops and razor clams are a food source and, being filter feeders, help to clean the water.
  9. Eelgrass, a submerged rooted aquatic plant, grows from a creeping runner that sends up leafy stems at intervals. Its leaves hide smaller fish from larger fish, and provide a nursery ground for many of the important commercial and recreational fishery species found in New York. The algae provide a refuge area for benthic organisms hiding underneath. The algae provide food for organisms and, when the algae die, they become part of the bottom habitat. Rooted vegetation holds in pollutants and vegetation in general helps to absorb silt and organic material.

    The Proposed Project and Expected Impacts:

  10. The Applicant proposes to construct a fixed dock extending from the northerly end of an existing walk leading to a ramp and floats. The dock will consist of a 4' X 45' fixed walk elevated a minimum of 4' above the grade level and have a pair of 3' X 4' steps to ground level on either side, The ramp, which will be secured to the fixed dock's seaward end with a hinge or hinges, will be 3' X 16' and lead to two 6' X 12' floats (i.e., the floats covering a combined total of 144 sq. ft.) secured by four 8" diameter and variable pilings. The hinged ramp and floats will rise and fall with changing water level. Two 8" diameter mooring pilings will also be installed approximately 12' west of the float. The proposed project would be constructed primarily in "Coastal Shoals, Bars and Flats" (SM, as shown on the applicable tidal wetland map), and, to a lesser degree, Adjacent Area (AA, on the landward side) and Littoral Zone (LZ, on the seaward side), but not in other area categories, as those area categories are defined and used in 6 NYCRR Part 661.
  11. Mr. Leibner has a kayak, would have a rowboat, and may obtain a small motorboat. He does not intend on dredging or doing anything to increase the water depth at the dock. Mr. Leibner wants to have a dock that is equivalent to others near his property to protect the value of his property in the future. The Department's permit for the Botbol structure (expiration date of 6/30/82) authorized a 10' X 20' (i.e., 200 sq. ft.) float and 3' X 25' ramp. The Botbol permit was amended (in 1983) to authorize three 6' X 11' floats (i.e., 198 sq. ft.).
  12. The landward half of the proposed fixed dock would be constructed through Phragmites. The two sets of steps extending from either side of the dock to the ground would be located in the sandy beach area between the apparent high and apparent low water lines. The floats would be located in shallow water, with the most seaward end located in water of 15" to 18" depth at low water. The 12' wide area that is located west of the two floats and east of the mooring pilings (called the "berthing area" by one witness) has a water depth of 15 inches on its landward end, 16 inches midway, and 18 inches at its seaward end. Based on the foregoing dimensions, this "berthing area" could accommodate a 10 feet wide vessel drawing up to 15" of water.
  13. The floats will shade the vegetation and algae that may lie underneath, killing same due to the lack of sunlight. As they rise and fall with changes in water level, the floats may also cause some turbidity (a suspension of the bottom material in the water column) that could contribute to the same effect. To the degree that the floats actually rest on the bottom on occasion, some compaction of sediments and harm to the organisms within may occur. The benthic community would be forced to leave the area under the floats, or die. Higher level organisms in the food chain that directly or indirectly feed on the vegetation, algae and other organisms under the floats will lose these as a food source. The other benefits derived from the vegetation and algae currently in the 144 square feet area that will be covered by the floats (such as holding in pollutants, absorption of silt and organic material, and hiding places for smaller or younger fish) will also be destroyed when these organisms die.
  14. People operating motorized boats in waters that are too shallow for their craft create turbidity by stirring up the bottom material, both directly by the propeller contacting the material, or by the pressure of water from the propeller (called "propeller wash"). The turbidity, if a regular occurrence, has the potential to suffocate vegetation and organisms nearby, adversely affecting the benefits associated with them. Vegetation may also be uprooted and benthic communities disturbed by the propellers. Such boat operation risks running the boat aground, raising a safety concern for both pilot and passengers. Such boat operation may, in effect, dredge a new channel (called "prop dredging") and cause the same environmental impacts as other forms of dredging. However, there is nothing about the proposed project which would cause boaters to operate craft in waters that are too shallow, particularly when it would put boaters or their craft at risk. Therefore, the adverse impacts and safety concerns associated with such practices are unlikely to result from the proposed project. Furthermore, based on the lack of noticeable "prop dredging" at the Botbol dock (water depths being virtually indistinguishable from those at the project site), the proposed project is unlikely to cause "prop dredging."

DISCUSSION

The proposed project will cause those adverse impacts to the tidal wetland which are identified in the Findings of Fact. Whether or not the adverse impacts are "undue" or incompatible with the policy of the Tidal Wetlands Act is determined with reference to the promulgated standards.

Activities that the regulations call "not regulated" and/or "not subject to the permit requirements" of Part 661 are compatible with tidal wetlands and the Tidal Wetlands Act (otherwise they would be regulated). Such activities include the following uses that are part of or related to the proposed project:

Boating in any tidal wetland area, whether motorized or non-motorized. See §661.5(a)(1), (b)(5) and (b)(13); and §661.4(ee)(2).

Establishing "recreational moorings" in any tidal wetland area. See §661.5(a)(1), (b)(10); and §661.4(ee)(2).

Installation of floating docks totaling less than 200 square feet in the SM, LZ and AA areas. See §661.5(a)(1), (b)(16); and §661.4(ee)(2).

Thus, adverse impacts caused by the proposed project's floats, mooring pilings and boating to and from same, are not "undue." However, since these uses involve construction of the dock and ramp (which do require a pen-nit) that will lead to the floats, the permit is required in spite of these uses' "NPN" (no permit necessary) designation. See §661.7(a).

"Constructing one open pile catwalk and/or dock not greater than four feet in width for any principal building" requires a permit, but is listed as a "generally compatible" use within all tidal wetland areas. See §661.5(b)(14). This means that such use is generally compatible with the preservation, protection and enhancement of the present and potential value of tidal wetlands, with actual compatibility dependent on the particular location, design and probable impact of the proposed use. See 661.5(a)(2). Here, no adverse impacts have been associated with the dock and ramp per se.

Considering together the dock, ramp, floats, mooring pilings, and the incidental recreational boating, the record demonstrates no greater impact from the whole project than the sum of its individual parts (each of which are either not regulated, or regulated and compatible with tidal wetlands).

CONCLUSIONS OF LAW

The proposed project:

  1. 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 wetland 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 Part 661, taking into account the social and economic benefits which may be derived from the proposed activity;
  2. is compatible with the public health and welfare;
  3. 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..."

RECOMMENDATION

The permit should be issued.

Appendices:

Attachment A - Exhibits List

August 24, 1999; rev 8/25/99; 12/14/99

NAME OF HEARING: Richard and Carol Leibner; Application No. 1-4728-02263/00005

Tidal Wetlands (Article 25, 6 NYCRR Part 661)

EXHIBITS LIST: [* = admitted for factfinding]

# Description of Item

*1 HEARING NOTICE DATED July 7,1999

1A Office of Hearings Hearing Notice Distribution List

1B Copy of Hearing Notice published in July 14, 1999 ENB

1C Affidavit of publication of Hearing Notice in Fire Island News

*2 APPLICATION consisting of:

a. Letter from Dianne K. LeVerrier of En-consultants dated 7/18/98

b. Joint Application dated 7/17/98

c. Project Description

d. Short EAF

e. 3 photos

f. 2 sheets of plans last dated 6/9/98

[original file item 3]

3 Staff s Notice of Permit Denial 12/30/98 [original file item 2]

*4 Applicant's request for Hearing 1/28/99 [original file item 1]

*5 Staff s Hearings Request 3/29/99 and index

*6 Additional Application Materials (Botbol Permit)

*7 Notice of Complete Application

*A-1 Tax Map

*A-2 Map of property 6/30/97

A-3 Barraga Approval

A-4 Schecter Approval

A-5 Ortenberg Approval

A-6 Regan extension 1/21/99

A-7 Rodin Proposal

*A-8 Map with testimony markings

*A-9 Map with depths added

*S-l Resume Laurence Pasciutti

*S-2 Tide charts 8/99, 12/98 + 2 pages information

*S-3 Map w/ testimony of witness

S-4 Four photos

*S-5 Tide chart

*S-6 Tidal Wetlands Map (portions)

*S-7 Resume Pamela Lynch

*S-8 Modified Tidal Wetlands Map (labels added)

*S-9 Six binder pages

*S-10 Resume Charles Hamilton

8/24/99 [A - Applicant; S - Staff]

Attachment A

1 Preliminarily, it should be noted that the Applicant's concerns over the Commissioner's potential reliance on a Department of State report in this proceeding is unfounded. The Commissioner recognizes the Applicant's absence of an opportunity to be heard on the document in question, and accordingly, no reliance shall be placed on the document in the rendering of the instant decision. (See, e.g., Sunset Sanitation Service Corp., v. Board of Zoning Appeals of the Town of Smithtown, 172 A.D.2d 755 (2d Dept. 1991)).

2 A hearing was conducted on August 24 and 25, 1999. References to the hearing transcripts from those two days are delineated herein as (H-1, p._) for 8/24/99 and (H-2, p. _) for 8/25/99.

3 6 NYCRR §661.4(ee) defines a "regulated activity" as, inter alia,:

  1. any form of draining, dredging, excavation or removal, either directly or indirectly, of soil, mud, sand, shells, gravel or other aggregate;
  2. any form of dumping, filling, or depositing, either directly or indirectly, of any soil, stones, sand, gravel, mud, rubbish or fill of any kind;
  3. the erection of any structures or construction of any facilities or roads, the driving of any pilings or placing of any other obstructions, whether or not changing the flow of the tide;
  4. any other new activity within a tidal wetland or on an adjacent area which directly or indirectly may substantially alter or impair the natural condition or function of any tidal wetland.

4 See, 6 NYCRR §661.5(b)(16).

5 See, 6 NYCRR §661.5(b)(10).

6 Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 25 (Tidal Wetlands); and Article 8 (State Environmental Quality Review Act, "SEQRA"). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 661 (Tidal Wetlands); and Part 617 (SEQR).

7 Title 6 NYCRR §661.9 (b), "Standards for permits on any tidal wetland" provides in relevant part:

  1. Overall standards. The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity:
    1. 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 is will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland 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 this Part, taking into account the social and economic benefits which may be derived from the proposed activity;
    2. is compatible with the public health and welfare;
    3. 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 ..."
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