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New York State Department of Transportation (Oyster Bay and Huntington) - Ruling, July 30, 1996

Ruling, July 30, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of the NEW YORK STATE DEPARTMENT OF TRANSPORTATION
for a Tidal Wetlands permit in relation to the reconstruction and improvement of
N.Y.S. Route 25A in the Town of Oyster Bay and the Village of Laurel Hollow, Nassau County,
and the Town of Huntington, Suffolk County.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE ON
PARTY STATUS AND ISSUES

DEC Project No. 1-9901-00007/00001-0

Background and Brief Project description

The New York State Department of Transportation ("DOT") intends to reconstruct the approximately one-mile section of N.Y.S. Route 25A between Cold Spring Road and N.Y.S. Route 108 in the Town of Oyster Bay and the Village of Laurel Hollow, Nassau County, and the Town of Huntington, Suffolk County. To improve the utility and safety of the roadway, the project includes improvements to the horizontal and vertical road alignments, widening of the roadway in the eastern portion of the project area, intersection and drainage improvements, and road resurfacing.

The project requires that a number of construction activities be conducted in or adjacent to mapped tidal wetlands associated with Cold Spring Harbor. As proposed, this work would include expansion of the paved area to the north of the existing edge of the road, with associated filling and grading to accommodate additional lanes; replacement and extension of the existing Cold Spring Brook culvert beneath the roadway; and extension of several existing outfall/drainage pipes to the new toe of the embankment on the north side of the roadway. About 0.22 acres of area mapped by the New York State Department of Environmental Conservation ("DEC") as tidal wetland would be filled as a result of the road widening.

DOT's proposal includes two measures to mitigate this impact. The first is the construction of a new retention basin and numerous leaching basins to trap sediment and other contaminants in stormwater runoff from the roadway west of the Cold Spring Harbor Fish Hatchery and Aquarium. The retention basin is proposed for the adjacent area north of the roadway just west of the tidal marsh, and would overflow to the tidal marsh adjacent area. The basin and overflow area immediately east of the basin would be planted with native wetland plant species to increase diversity and replace disturbed habitat.

The second mitigative measure is a proposal to restore the quality of some of the degraded tidal marsh habitat just north of the construction area. The common reed, phragmites, sp., would be eliminated from an approximately 40,000-square-foot area of mapped tidal marsh. With the reeds removed at their roots, the affected area would be excavated to establish the elevations necessary to maximize soil and water salinities throughout the tidal phases in an effort to restore conditions under which native tidal marsh plant species would have a competitive advantage.

- - Permits Requested

DOT is requesting from DEC a tidal wetlands permit pursuant to Article 25, Title 4, of the New York State Environmental Conservation Law ("ECL") and Part 661 of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR Part 661"). Also requested is a Water Quality Certification pursuant to 6 NYCRR Part 608. A draft permit addressing these requirements has been prepared by DEC Staff.

It is possible that the project may need a Long Island Well permit pursuant to 6 NYCRR Part 602 if construction requires use of a dewatering system with pumping capacity greater than 45 gallons per minute. DEC Staff contends that it would be impractical to include consideration of a Long Island Well permit as part of this proceeding because the application for that permit requires details of the dewatering equipment to be used, which is furnished by the contractor and can vary significantly in design and specification, and because a contractor would not be selected until the DOT received the wetland permit for inclusion in its bidding documents.

- - SEQRA Status

As lead agency pursuant to the State Environmental Quality Review Act ("SEQRA", ECL Article 8), DOT determined that its project as proposed would not have any significant environmental effects and issued a Negative Declaration on September 9, 1993.

Legislative Public Hearing

A Notice of Public Hearing, dated May 7, 1996, was published in DEC's Environmental Notice Bulletin on May 15, 1996. It was published as a legal notice in Newsday on May 16 and 19, 1996.

As announced in the legal notice, a legislative hearing for comments on the application was held during the afternoon and evening of June 11, 1996, at the Oyster Bay Town Hall. I conducted this hearing on DEC's behalf and also on behalf of the U.S. Army Corps of Engineers and the New York State Department of State.

The project requires approval of the Army Corps of Engineers pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act (33 U.S.C. 1344), as amended, since it will result in the filling of tidal and freshwater wetlands regulated by that agency. This federal approval is contingent upon a coastal consistency concurrence by the New York State Department of State.

Among the several hundred people who attended one or both of the sessions, about 50 people spoke at the legislative hearing. Many other comments were handed up from the audience or mailed to my office.

Proponents of the project mainly argued that it is necessary to protect public safety on a long, steep, curving and often slippery stretch of N.Y.S. Route 25A. Several proponents noted that when it rains, cars going downhill have skidded or spun out, causing accidents. Project proponents, including several from the Cold Spring Harbor Laboratory, noted that with the lab's expansion in recent years, employees and visitors have found it difficult and hazardous to enter the highway at peak times, especially since it is hard to see oncoming traffic. Proponents said the filling of wetlands due to widening of the road to create turning lanes is insignificant when compared to the lives that might be saved by this project's going forward.

Most of the hearing speakers were against the project or at least argued for careful consideration of an alternative proposal by a group called the Sounding Committee of Concerned Citizens for Route 25A. This alternative, speakers said, differs from DOT's proposal since it does not include widening of the road bed and the attendant loss of wetlands. The alternative would provide for more traffic lights along the hill, to facilitate left-hand turns; reduction of the speed limit; and resurfacing of the road with a high-friction, skid-resistant material.

Opponents of the project include a wide array of organizations in addition to the concerned citizens' group. These organizations include the Long Island Soundkeeper Fund, the Town of Huntington Conservation Board, Huntington United Civic Associations, the Long Island Progressive Coalition, the Environmental Defense Fund, and the North Shore Baymen's Association, as well as two organizations along the affected stretch of road, St. John's Church and the Cold Spring Harbor Fish Hatchery.

Opponents said the citizens' group's alternative proposal could adequately address safety concerns while not destroying wetlands and affecting the ecology of the Cold Spring Harbor estuary. They questioned DOT's proposal to replace an area of phragmites with Spartina alterniflora, saying DOT had overstated its ability to encourage Spartina growth while ignoring the benefits of phragmites in filtering pollutants from road runoff, holding sediments, recycling nutrients and providing habitat for birds.

Opponents also said DOT's widening of Route 25A would encourage more cars to use the road and ultimately lead to greater traffic congestion. They said that because it is more modest, the citizens' group proposal would be less expensive and could be implemented more quickly. According to opponents, the widening of Route 25A would disrupt local business and upset the scenic and historic character of the affected stretch of roadway.

Issues Conference

As announced in the Notice of Public Hearing, an issues conference was held on June 12, 1996, also at the Oyster Bay Town Hall. The purpose of the conference was to determine what issues bearing on permit issuance would require adjudication and who, among the filers for party status, would participate in an adjudicatory hearing, should one be required. Participants at the issues conference were DOT, DEC Staff, and two prospective intervenors who both filed for full party status: the Sounding Committee of the Concerned Citizens for 25-A ("the Concerned Citizens"), and the Cold Spring Harbor Laboratory.

DOT was represented by William S. MacTiernan, Esq., of DOT's Albany office.

DEC Staff was represented by Gail Hintz, Esq., of DEC's Region 1 office in Stony Brook.

The Concerned Citizens were represented by Joel R. Kupferman, Esq., of Huntington, and Charles W. Bowman, an environmental consultant with Land Use Environmental Corp. of Baiting Hollow. Since the issues conference, the Melville firm of Cahn, Wishod & Lamb, LLP (Frederick Eisenbud, of counsel), has been substituted for Mr. Kupferman. Therefore, Mr. Einsenbud has been added to the service list and Mr. Kupferman deleted.

The Cold Spring Harbor Laboratory was represented at the issues conference by its director of facilities, Arthur F. Brings.

Prior to the issues conference, DEC Staff determined that the project should be approved in accordance with the terms of a draft permit which was marked and received as conference exhibit No. 5. As Ms. Hintz explained at the legislative hearing, Staff contends that the project is necessary to improve safety and traffic flow on the affected stretch of road. According to Staff, the project would have a minimal effect on the tidal marsh associated with Cold Spring Harbor, because filling would be restricted to an area of phragmites that Staff contends is already degraded. Staff argues that the mitigation proposed by DOT would replace another area of phragmites with more productive wetland vegetation.

DEC Staff is prepared to issue its draft permit, and DOT has offered no objections to its terms. Therefore, as between DOT and DEC Staff, there are no proposed issues for adjudication.

There are also no issues proposed by the Cold Spring Harbor Laboratory, since it supports DOT's project. Therefore, the only potential issues are those proposed by the Concerned Citizens. At the issues conference, the Concerned Citizens were provided an opportunity to outline the issues in their filing, and both DOT and DEC Staff were provided an opportunity to respond. Both DOT and DEC Staff contend that none of the issues proposed by the Concerned Citizens require adjudication, although they do not contest the adequacy of the group's environmental interest, which is a factor in granting full party status [6 NYCRR 624.5(d)(1)(iii)].

According to the Department's permit hearing regulations, an issue proposed by a prospective intervenor 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 and related documents (received here as conference exhibit No. 4), the draft permit (exhibit No. 5), the content of the petition for party status (the Concerned Citizens filing is exhibit No. 6), the record of the issues conference, and any subsequent written arguments authorized by the ALJ. (None were authorized in this case.) [6 NYCRR Section 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. [6 NYCRR 624.4(c)(3)]

Because DEC Staff has determined that the project as conditioned by the draft permit conforms to all applicable requirements of statute and regulations, the burden of persuasion was on the Concerned Citizens as prospective intervenors to demonstrate that their issues are substantive and significant. [6 NYCRR 624.4(c)(4)]

Issues for Adjudication

The Concerned Citizens have raised issues concerning DEC's permit issuance standards for activities proposed to occur in and adjacent to tidal wetlands. [6 NYCRR 661.9(b),(c)] These issues are raised in relation to both the reconstruction and widening of Route 25A, which would involve wetland filling, and the wetland mitigation plan, which would involve wetland excavation. They also relate to the construction of the retention basin in the wetland adjacent area.

- - Widening of Route 25A

To improve safety and provide greater traffic capacity, DOT proposes to widen Route 25A from three to four lanes (two eastbound and two westbound) between Route 108 and the Cold Spring Harbor Laboratory. The road would be widened on the north side, resulting in the filling of 0.22 acres of mapped tidal wetland.

According to DOT, the widening is intended in part to facilitate access from the laboratory to Route 25A. Bungtown Road now serves as the main access to the laboratory, and a secondary truck entrance is located east of that intersection. According to DOT, the accident rate in this area is about three times the statewide average. DOT notes that during peak traffic periods it is very difficult to safely exit from the laboratory due to high traffic volumes and insufficient gaps between oncoming vehicles. According to DOT, vehicles making left turns onto Route 25A from Bungtown Road use the westbound left turn lane to avoid delays due to traffic volumes from both directions, which creates an unsafe condition that the road widening is intended to correct.

DOT's proposed design involves moving the existing laboratory truck entrance to a location opposite that of the fish hatchery, and controlling both entrances with a traffic signal. The laboratory would reconfigure its property to make this its main facility entrance, reducing congestion at the Bungtown Road intersection. On Route 25A, two through lanes would be provided in each direction to minimize delay at the new traffic signal during peak periods. Left turn lanes would be provided for vehicles entering the laboratory and the fish hatchery, and a crosswalk with a pedestrian push-button would be provided between the fish hatchery and the new laboratory driveway.

A retention basin to capture roadway drainage now entering the wetland directly would be constructed on the north side of Route 25A just east of the new laboratory driveway. On the south side of Route 25A, retaining walls would be constructed as requested by the fish hatchery to minimize impacts to the hatchery property. Also, the large twin culvert connecting St. John's Pond with Cold Spring Harbor would be replaced. This deteriorating culvert allows water to pass beneath the roadway.

DOT's proposed safety improvements at the intersection of Routes 25A and 108 include flattening 25A's sharp curve and adding an additional westbound through lane. According to DOT, this intersection now has an accident rate three times the statewide average due to poor roadway alignment and delineation. The sight distance is poor around the sharp curve, and the twin left turn lanes from Route 108 are forced to merge into one lane just west of the intersection. The pavement widening is intended to accommodate the additional through lane and the flatter curve of Route 25A at the Route 108 intersection.

According to DOT, the widening of the roadway to four lanes is integral to the improvements designed to benefit traffic flow in the vicinity of the laboratory. Without this widening, DOT contends that the proposed traffic signal at the laboratory cannot be installed due to substantial traffic delays that would result. Considering current traffic volumes, DOT says that these delays would be about 4 minutes per vehicle westbound in the morning peak period and 1.5 minutes per vehicle eastbound in the afternoon peak period.

To accommodate the four travel lanes, the roadway would be widened on the north side, requiring the filling of about 0.22 acres of tidal wetland. DOT says the affected area consists entirely of phragmites with minimal ecological value and few wetland benefits.

- - Wetland Mitigation Plan

To offset the loss of tidal wetlands due to the road widening, DOT has proposed a mitigation plan for the tidal wetland region north of Route 25A between the laboratory and Route 108. This mitigation (or enhancement) plan, developed by DOT in conjunction with DEC Staff, the Army Corps of Engineers, and the Department of State, consists of two phases. The first phase involves removing a small area of phragmites plants, about eight-tenths of an acre, and lowering the ground elevation in that area to retain tidal flow. Salt water from the harbor at high tide would then be allowed to flow into this area, creating an environment for native intertidal salt marsh species like Spartina alterniflora to colonize. The area would be monitored to ensure that the proper salinities and soil conditions are developing.

Phase two of the plan would involve the planting of intertidal marsh vegetation such as Spartina alterniflora and Spartina patens (salt hay grass) to enhance the wetland environment for the wildlife population, and the continued monitoring of the area to confirm proper habitat development.

Overall, DOT intends that the project result in a net benefit to the Cold Spring Harbor tidal wetland ecosystem. It is intended that the quality of surface runoff, which presently flows directly into the wetlands, would be improved by virtue of the new drainage system. Also, it is intended that the mitigation plan would enhance the wetland's appearance and preserve and enhance habitat for native plant and animal species.

- - Tidal Wetland Permitting Issues

The filling associated with the road widening and the excavation of phragmites as part of the mitigation plan are activities proposed to occur in tidal wetlands; therefore, they require a permit from DEC. Upon review of the conference record and the filing made by the Concerned Citizens, I find the following issues which bear upon permit issuance:

  1. Whether the project would have an undue adverse impact on the values of the tidal wetland area north of the project site, taking into account the social and economic benefits which may be derived from the project [6 NYCRR 661.9(b)(1)(i)];
  2. Whether the project is reasonable and necessary, taking into account the alternative proposed by the Concerned Citizens, which does not involve filling and therefore does not require a mitigation plan [6 NYCRR 661.9(b)(1)(iii)]; and
  3. Whether the project complies with the use guidelines of 6 NYCRR 661.5 [6 NYCRR 661.9(b)(1)(iv)].

- - Undue Adverse Impact, In Consideration of Project Benefits

To receive a permit for a regulated activity which would occur in a tidal wetland, a project applicant must demonstrate that the activity is compatible with the policy of the Tidal Wetlands Act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such 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, . . . taking into account the social and economic benefits which may be derived from the proposed activity" (Emphasis added) [6 NYCRR 661.9(b)(1)(i)].

In their filing, the Concerned Citizens argue that the filling of tidal wetland associated with the road widening would be invasive and destructive of what it describes as an irreplaceable resource. At the issues conference they argued that the filling would adversely affect all of the wetland values listed in the preceding paragraph. They contend that the effect would be undue because of the benefits now provided by the area to be filled. These benefits, they add, have been undervalued by DOT and DEC Staff.

In general, issues are raised with regard to the value of the wetlands to be lost due to filling for the widening of Route 25-A, and due to excavation as part of the mitigation proposal. Whether the project, including its mitigation plan, would lead to an enhancement of the overall wetland area north of the project site, as argued by DOT, is also at issue.

The Concerned Citizens are prepared to call several witnesses on the project's wetland impacts. They include Mr. Bowman, an environmental consultant with experience in tidal wetland restoration; Norman Soule, director of the Cold Spring Harbor Fish Hatchery and Aquarium; Dr. Christopher Sallatti, a wildlife biologist with the Queens College Center for Environmental Teaching and Research; David Singer, Long Island director of the Soundkeepers Fund; and Christopher Lawrence, vice president of the North Shore Baymen's Association.

The Concerned Citizens would offer testimony not only about the impacts due to the loss of phragmites-dominated wetland, but also about the difficulties attendant to DOT's mitigation plan. In particular, they question the efficacy of DOT's proposal to excavate and thereby raise the water salinity at the south end of Cold Spring Harbor, and its effect on the wetland system as a whole.

Whether an activity would have an undue adverse impact on wetland values must be considered in light of the project's social and economic benefits. DOT and DEC Staff contend that the widening of the road would improve safety, especially for traffic exiting the laboratory; lower the accident rate along the affected stretch of highway; and generally improve the traffic flow. To weigh these benefits against the loss of wetland attendant to project filling, DOT needs to back up its claims with evidence, providing an opportunity for cross-examination. This would also be part of the issue's adjudication.

- - Reasonableness and Necessity of Project, In Light of Alternatives

To receive a permit, DOT must also show that its project is "reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity" (Emphasis added) [6 NYCRR 661.9(b)(1)(iii)]. The issue here concerns a weighing of DOT's plan against the alternative proposed by the Concerned Citizens, but only as it relates to the stretch of Route 25-A that DOT proposes to widen.

According to the Concerned Citizens' filing, their sounding committee was formed at a public meeting in January, 1996, and charged with examining proposals for improving safety on Route 25A for the entire stretch between Route 108 in the east and Syosset/Cold Spring Road in the west. The Sounding Committee proposal is advanced by the Concerned Citizens as safety- oriented, respectful of the environment, with no economic impact on local business during the period of reconstruction. Also, they argue, it preserves the unique character of the area and can be implemented without delay at a very low cost.

The Concerned Citizens' plan differs from DOT's proposal in several important respects. For instance, under the Concerned Citizens' plan, lab traffic would continue to use the existing lab service entrance, rather than a new entrance proposed by DOT that would be opposite the fish hatchery. Also, traffic- activated and coordinated traffic signals would be placed on Route 25A at both the service entrance to the lab and at the fish hatchery.

Rather than widening the road for two eastbound lanes between a new lab entrance and Route 108, as proposed by DOT, the Concerned Citizens would leave one eastbound lane opening to two lanes at Route 108. This would avoid the loss of the 0.22 acres of tidal wetland to be filled under DOT's proposal. The Concerned Citizens would have the affected stretch of road repaved with a high friction surface, and use an existing culvert for water flowing beneath the road, rather than replacing the culvert with a larger, wider bridge, as proposed by DOT. They would also have the speed limit lowered from 45 mph to 35 mph. The Concerned Citizens propose no new construction at the Route 108 intersection, in contrast to the widening proposed by DOT.

The Concerned Citizens have identified several traffic engineers who would testify about the feasibility and benefits of their proposal as an alternative to the DOT project. They include Donald E. Cotton, president of Planning and Research Consulting Associates; Brian Patton and David Noss, consulting engineers; and a Mr. Simoff of Simoff Associates.

DOT has evaluated the Concerned Citizens plan in a document received as conference exhibit No. 8. DOT disputes the efficacy of the Concerned Citizens' proposals for the stretch of road that the agency would widen. DOT claims that the Concerned Citizens' proposal fails to address necessary geometric and intersection improvements that are important to reducing the accident rate. DOT says that the 10 mph reduction in the posted speed limit, as proposed by the Concerned Citizens, has no basis in accepted traffic engineering principles, and might actually exacerbate current safety problems. DOT says the installation of two signals, one at the laboratory and the other at the fish hatchery, would result in significant congestion during peak traffic periods. Also, DOT claims that the Concerned Citizens' proposal fails to address the high accident rate at the intersection of Routes 25A and 108, and the need to replace the existing culvert.

DOT contends that important parts of its environmental mitigation are the elimination of a large part of the direct roadway runoff to tidal and freshwater wetlands, and the improvement of runoff quality due to a drainage system composed of a retention basin and fields of leaching basins. According to DOT, the Concerned Citizens' proposal does not include any method of reducing the amount of direct stormwater discharge to the wetlands and consequently perpetuates a negative condition.

DOT contends there is no issue because it has looked at the Concerned Citizens proposal and determined that it would not work. DEC Staff agrees there is no issue because the Concerned Citizens have not provided evidence that their alternative adequately addresses issues such as traffic flow.

I find an issue because the Concerned Citizens have advanced a plan developed by their own traffic experts, who they assert are able and willing to testify. At the issues conference stage, it is enough to raise issues based on competent offers of proof; the actual evidence will be heard later, and then the issues will be decided. If it turns out that the alternative proposed by the Concerned Citizens is reasonable and would adequately address what all parties acknowledge are legitimate safety concerns, it might render DOT's plan and its attendant loss of wetland unnecessary. However, if it is not reasonable or would not address current safety problems, that would suggest that DOT's plan should go forward instead.

While I find an issue exists, I also agree with DOT and DEC Staff that the hearing need not address all aspects of DOT's Route 25-A proposal or, for that matter, all parts of the Concerned Citizens' alternative to that proposal. DOT's proposal and the alternative presented by the Concerned Citizens both encompass a longer stretch of road than would be affected by the widening along the tidal wetland. DEC has no jurisdiction to examine DOT's proposal, or to compare it with alternatives, except to the extent DOT's proposal involves the loss of tidal wetland. Therefore, the hearing shall address only those features of DOT's and the Concerned Citizens' plans that address the stretch of Route 25A between the laboratory and Route 108.

- - Compliance with Use Guidelines

To receive a permit, DOT must also show that its wetland activities comply with the use guidelines contained in 6 NYCRR 661.5 [6 NYCRR 661.9(b)(1)(v)]. According to these guidelines, the widening of the roadbed, the filling related to the widening, the replacement of the culvert, and the dredging as part of the mitigation plan are presumptively incompatible with the type of wetland (high marsh or intertidal marsh) where the activities would occur. [ See, 6 NYCRR 661.5(b)(25), Expansion or substantial modification of existing functional structures; (b)(27), Dredging; and (b)(30), Filling.]

If a proposed activity is a presumptively incompatible use, the regulations impose a presumption that the activity may not be undertaken in the subject area because it is not compatible with the area involved or with the preservation or enhancement of its present or potential wetland values. The applicant then has the burden of overcoming the presumption and demonstrating that the activity will be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands. [6 NYCRR 661.9(b)(1)(v)]

In this case DOT has the burden of overcoming the presumption of incompatibility with regard to its filling of the 0.22 acres of wetland next to Route 25A and its excavation (or dredging) of another eight-tenths of an acre for its mitigation plan. The issue under this section is whether DOT is able to demonstrate that its project as a whole (including the mitigation) is compatible with the general area of tidal wetland north of Route 25A and would actually enhance the area as intended.

Again, the Concerned Citizens are prepared to offer expert testimony addressing impacts to the wetland and whether DOT's mitigation would be successful. DEC Staff is satisfied that the mitigation would work and contends that even if it failed to, the area excavated as part of the mitigation plan would naturally return to phragmites, so there would be no net loss. DEC also contends that the retention basin proposed by DOT would accomplish many of the same benefits now performed by the phragmites along the roadside.

I find an issue to exist based upon the Concerned Citizens' offers that the phragmites near Route 25A provide important wetland benefits, that the retention basin may not provide comparable benefits, and that the mitigation plan may not achieve the results intended by DOT and DEC Staff. These considerations are all key to determining whether the project as a whole will be compatible with and enhance the wetland zone.

According to the use guidelines, the retention basin proposed by DOT is generally compatible with its location in the wetland adjacent area. [6 NYCRR 661.5(b)(43)]. Also, the Concerned Citizens agree that the retention basin is a good idea. However, the Concerned Citizens are prepared to offer testimony that the retention basin would not be as successful as DOT claims in holding the increased runoff due to the widening of the road. This freshwater runoff, the Concerned Citizens argue, could alter the wetland environment and undermine the mitigation plan, which is premised on raising water salinity. This should be considered as an issue under 6 NYCRR 661.9(c)(3), which requires that activities on an tidal wetland adjacent area shall not be permitted unless they would not have an undue adverse impact on the value of the wetland itself.

No Issue for Adjudication

Project Compatibility With Public Health and Welfare

The Concerned Citizens argue that DOT's project is not compatible with the public welfare, another permitting criterion for activities on tidal wetlands. [6 NYCRR 661.9(b)(ii)]. This issue is proposed in relation to project impacts on local business and the general historic character of Cold Spring Harbor. The Concerned Citizens claim that the duration and scope of the proposed project would substantially damage the local economy, both as a direct result of severely restricted access to the Cold Spring Harbor/Huntington area for the period of several years, and indirectly in that the economic health of the area is intrinsically linked to its scenic and historic character. They would call as witnesses local store owners and others who would speak about the character of Cold Spring Harbor as a rural fishing village.

I am excluding this issue based on the Concerned Citizens' inadequate offer of proof. DOT confirms that throughout the project's life, one lane of Route 25A would remain open in each direction. There was nothing but speculation to support any claim that this would keep people from Cold Spring Harbor or substantially damage the local economy. Also, the elimination of such a small amount of wetland, associated with road widening, could not by itself upset the scenic and historic character of the community. At most, the reconstruction would cause inconvenience for motorists. But inconvenience goes with any road reconstruction project, whether it involves filling wetlands or not.

Compliance with Development Restrictions

The Concerned Citizens claim that DOT's project does not comply with the development restrictions contained in 6 NYCRR 661.6 for new activities occurring on tidal wetlands [6 NYCRR 661.9(b)(iv)]. These restrictions require that new hard surface roads be set back a minimum of 75 feet from any tidal wetland, providing an exception, however, for regulated activities that involve a crossing or direct access to tidal wetland on the subject property [6 NYCRR 661.6(a)(7)].

This development restriction does not apply since DOT's roadwork is not a "new" activity; the road is already there. Also, the road is in effect a crossing of the tidal wetland, and therefore even if it were considered new, the restriction would not apply.

SEQRA Review

The Concerned Citizens object to the SEQRA review of this project, and to DOT's issuance of a Negative Declaration finding there would be no significant environmental effects. The Negative Declaration is not reviewable in this proceeding. As noted at 6 NYCRR 624.4(c)(6)(ii)(a), where an agency other than DEC serves as lead agency and that agency determines that the proposed action does not require the preparation of a draft environmental impact statement, the DEC administrative law judge will not entertain any issues related to SEQRA.

The Concerned Citizens also claim it was improper for DOT to assume lead agency status for its own project. However, there is nothing unusual about this practice; in fact, it is quite common. DOT notes that it has an agreement with DEC that DOT be lead agency for its own projects so long as the SEQRA review is coordinated with DEC. According to DEC Staff, review was coordinated in this instance.

Finally, the Concerned Citizens say that certain impacts - - including impacts to existing wetland resources, and to the fish hatchery and its adjoining stream corridor - - were not assessed in determining whether the project would have significant environmental effects. Again, to the extent this is intended to be a SEQRA issue, it is beyond the range of this proceeding.

Visual and Aesthetic Impacts

The Concerned Citizens claim that the project's visual and aesthetic impacts to a historic district corridor were not considered. Actually, as noted by DOT, the project design was reviewed by a state historic preservation officer who made a "no effect" determination for the project as it relates to historicstructures.

According to the Concerned Citizens, the project is also inconsistent with a state law that declared Route 25A a scenic and historic route. This law (Chapter 180 of the Laws of 1974) directs local authorities to identify and plan for the preservation, enhancement, and interpretation of the historic, scenic, natural, and cultural assets of the Route 25A corridor. Contrary to an assertion by the Concerned Citizens, this law does not prohibit the type of work proposed by DOT.

Freshwater Wetland Impacts

The Concerned Citizens contend in their filing that DOT's plans for Route 25A would result in the filling and destruction of freshwater wetlands as well as tidal wetlands. DEC's jurisdiction over freshwater wetlands is limited to those which either cover 12.4 or more acres or have unusual local significance. DOT's project would not affect any freshwater wetland mapped by DEC as meeting either of these jurisdictional requirements. Five hundredths of an acre of freshwater wetland subject to the jurisdiction of the U.S. Army Corps of Engineers would be eliminated due to the roadway realignment at Moores Hill Road to straighten Route 25A's sharp curve there. The Concerned Citizens' argument that "all wetlands have value" does not suggest any unusual local significance of this small wetland area.

Water Quality Certification

In addition to a tidal wetlands permit, DOT's project requires a water quality certification from DEC pursuant to 6 NYCRR 608.9. The Concerned Citizens claim there is an issue bearing upon issuance of this certification, related to the effect the retention basin would have on water salinity in the tidal wetland. However, the Concerned Citizens did not relate this alleged impact to any legal provision enforced by DEC. Therefore, no issue was raised. At any rate, DOT said its project would not violate any of DEC's water quality standards, and there was no offer suggesting that it would.

Other Issues

All other issues proposed by the Concerned Citizens which are not explicitly addressed by these rulings have been considered and found not to raise matters for adjudication or to require the provision of additional information at this time.

Filing of Cold Spring Harbor Laboratory

In addition to the Concerned Citizens, the Cold Spring Harbor Laboratory also filed for full party status. While the filing was received after the deadline, the Laboratory established that this was due to an error on the part of Federal Express and therefore, the late filing is excused.

The Laboratory filed for party status in support of the project and has asked to be a party to the adjudication of any issues that are certified. However, it proposes no issues of its own, makes no offer of proof, and does not identify any prospective witnesses. Therefore, its filing does not meet minimum requirements for full party status. [6 NYCRR 624.5(b)(2)]

The Laboratory's filing indicates that the project would have a major impact on access to and egress from its facility and the fish hatchery, which the Laboratory also owns. The Laboratory also notes that the project calls for the taking of its property at six different locations, and the construction of the retention basin on its property adjacent to its easterly entrance. As noted above, the laboratory entrance would be relocated pursuant to DOT's project design.

Its filing indicates that the Laboratory has been involved in the technical aspects of the project for more than 10 years, and that it supports the safety improvements and environmental enhancements proposed by DOT. According to Mr. Brings, the Laboratory has consulted its own engineer, who has said Route 25A must be widened on account of its traffic volume. However, this engineer was not identified as a prospective witness. In fact, the Laboratory said in its filing that it did not intend to call any witnesses or speak "at this time," instead reserving these rights for exercise at some later date. Because the Laboratory was not forthcoming at the issues conference, I cannot verify that it could meaningfully contribute to the adjudication of the issues identified in this ruling, which is a basis for granting full party status [6 NYCRR 624.5(d)(1)(ii)].

According to Mr. Brings, the Laboratory is particularly concerned about ensuring adequate access to and from Route 25A. DOT indicated at the issues conference that without the road widening, which requires the tidal wetlands permit, it would not install a traffic signal at the laboratory entrance due to the congestion it would create. The signal's installation is clearly desirable from the Laboratory's perspective, and if DEC's permit is not granted, it apparently would not occur.

Assuming my rulings are upheld and an adjudicatory hearing is scheduled on issues of project benefit and need, I would encourage the Laboratory to share relevant information with DOT for its possible presentation at the hearing. But I find no basis to grant the Laboratory party status for itself. If the Laboratory wanted to call witnesses or address particular issues, it had a duty to explain itself in its filing or at the conference, in response to my pointed questions.

At the conference, Mr. Brings did confirm that the Laboratory aligns itself with DOT in advocating that the project go forward. On that basis, whatever the Laboratory would want considered could be adequately covered by DOT's own engineering experts, without the risk of redundancy from making the Laboratory a separate party.

Summary of Rulings

  1. As noted above, the Concerned Citizens have raised various issues bearing on issuance of the tidal wetland permit requested by DOT. These issues are substantive since they raise sufficient doubt about the project's ability to meet the permit issuance standards at 6 NYCRR 661.9, such that further inquiry is warranted. These issues are also significant since they could result in permit denial, a major modification of the project, or amendments to the draft permit.
  2. Having filed an acceptable petition, raised substantive and significant issues, and demonstrated adequate environmental interest, the Concerned Citizens are granted full party status for an adjudicatory hearing to be held on the issues certified by this ruling. [6 NYCRR 624.5(d)(1)]
  3. Because of its inadequate petition and failure to demonstrate that it could contribute meaningfully at an adjudicatory hearing, the Laboratory's request for full party status is denied. However, I encourage the Laboratory to assist DOT on issues of project benefit and need, to the extent that the Laboratory has relevant information.

ADDENDUM

In a memorandum of June 14, 1996, I indicated that my rulings would be made after I received the legislative hearing and issues conference transcripts. The issues conference transcript received on July 8, 1996, is of very poor quality, and contains numerous mistakes. If the conference was recorded on tape, then DOT must provide a more accurate transcription. At any rate, another stenographer should be engaged for the adjudicatory hearing.

I have not yet received the legislative hearing transcript. To move this proceeding forward, I am issuing these rulings without it, relying on my notes from that hearing.

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 on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed with the DEC Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

Allowing extra time due to the number and length of these rulings, any appeals must be sent to Commissioner Michael Zagata and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-1010) before 2 p.m. on August 19, 1996. Any responses to any appeals must be received before 2 p.m. on August 30, 1996. The parties shall ensure that transmittal of all papers is made to me and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. Please ensure that I receive two copies of any appeal that is filed. No submittals by telecopier will be allowed or accepted. Appeals should address these rulings, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.

The adjudicatory hearing will be scheduled once the deadline for appeals has passed or, if appeals are filed, once they are decided. DOT would have the burden of going forward and would present its case first, in conjunction with DEC Staff. I would expect DOT to present its traffic engineers on the need for and benefits of it plan, assisted by DEC Staff on the wetland issues.

I urge the Concerned Citizens to scale back the number of their proposed witnesses to eliminate redundancies in case presentation and therefore expedite the hearing. The parties will be expected to confirm the names of their witnesses, as well as their availability, when the hearing is scheduled.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
July 30, 1996

TO: Attached Service List

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