New York State Department of Transportation (Oyster Bay and Huntington) - Interim Decision, October 7, 1996
Interim Decision, October 7, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010
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 NYS Route 25A
in the Town of Oyster Bay and the Village of Laurel Hollow, Nassau County,
and the Town of Huntington, Suffolk County
DEC Project No. 1-9901-00007/00001-0
October 7, 1996
Interim Decision of the Commissioner
This Interim Decision of the Commissioner addresses an appeal pursuant to 6 NYCRR 624.8(d)(2)(i) of our Permit Hearing regulations filed on behalf of the Sounding Committee of Concerned Citizens for 25A ("Concerned Citizens"). Concerned Citizens' appeal requests that the Commissioner review and reverse the Rulings of Administrative Law Judge ("ALJ") Edward Buhrmaster dated July 30, 1996 insofar as the ALJ decided not to include five proposed issues among those to be adjudicated in this proceeding. Applicant, the New York State Department of Transportation ("DOT" or "Applicant") and Department Staff oppose the appeal. Neither Staff nor Applicant appeal from that part of the ALJ's Rulings which found, based on an issues conference held on June 12, 1996, that Concerned Citizens had raised three substantive and significant issues which should be adjudicated. The ALJ's Ruling also granted full party status to Concerned Citizens. The Ruling denied party status to Cold Spring Harbor Laboratory, which did not appeal from that ruling.
DOT is undertaking a series of improvements to seven intersections on State Route 25A located between Cold Spring Road in Nassau County and Lawrence Hill Road in Suffolk County, together with repaving and related roadway improvements. The involved highway segment is about 1.25 miles long, with a steep drop in elevation and curve to the right as it proceeds easterly. The DOT project is intended to improve access to Route 25A for public safety purposes. DOT has concluded that the portion of the involved highway segment between the Cold Spring Harbor Laboratory, the Cold Spring Harbor Fish Hatchery and the intersection of Route 108 should be widened from three to four travel lanes in order to accommodate installation of a traffic signal at the relocated Laboratory driveway and the Hatchery driveway. This widening would require that the existing highway embankment, which crosses a tidal wetland at the south end of Cold Spring Harbor, be expanded. As a result, DOT proposes to lace fill on approximately 0.22 acres of existing tidal wetlands dominated by phragmites.
The DOT application to the Department in this proceeding is for a tidal wetlands permit authorizing the filling of the 0.22 acre area (less than 10,000 square feet). DOT proposes to mitigate the impact of filling 0.22 acres of phragmites wetland by replacing a nearby 0.8-acre phragmites-dominated area with higher value wetland plant species.
Issues for Adjudication
The ALJ's July 30 Ruling concludes that the Concerned Citizens raised the following substantive and significant issues for adjudication:
- Whether the project would have an undue adverse impact on the values of the tidal wetland, taking the project's social and economic benefits into account.
- Whether the project is reasonable and necessary, taking into account Concerned Citizens' proposed alternative.
- Whether the project complies with the use guidelines.
As noted above, the ALJ's decision to adjudicate these issues was not appealed.
Appeal from the ALJ's Decision Not to Adjudicate Certain Other Issues
Concerned Citizens appeal from the ALJ's determination to reject five other potential issues for adjudication. I am not persuaded that any of these potential issues rise to the level of substantive and significant issues for adjudication. I concur with the ALJ's Rulings which rejected them. I note the following with respect to each such issue:
- Project Compatibility with Public Health and Welfare
Concerned Citizens point to 661.9(b)(1)(ii) of our Department's standards for tidal wetlands permit issuance, stating that the proposed activity must be compatible with the "public health and welfare." On appeal, they contend that we should adjudicate whether this standard will be met. In support they assert that the project would adversely affect the local economy during construction by restricting traffic access along the affected part of the route and in Cold Spring Harbor. However, DOT's construction plan provides for maintaining traffic flow in each direction on Route 25A during construction. While the construction activity is likely to impede traffic flow temporarily, there is no basis in the Concerned Citizens' offer of proof to support finding a substantive and significant issue for adjudication on the matter of traffic disruption during construction. The scope of the "public welfare" criteria in our tidal wetlands permit standards should be limited to factors related to tidal wetlands impacts, and should not be interpreted, as Concerned Citizens argues, to incorporate its broader contentions of temporary economic disruption during construction. It should be noted that the DOT as the lead agency under the State Environmental Quality Review Act ("SEQRA") issued a negative declaration for this project. The ALJ ruled out SEQRA issues pursuant to 6 NYCRR 624.4(c)(6)(ii)(a). That determination was not appealed. Nor do I find persuasive Concerned Citizens' arguments that the "public welfare" criteria requires us to examine questions of herbicide use. DOT says that no herbicides will be used. In short, I concur with the ALJ's Ruling on the "public welfare" issue. The appeal on this issue is dismissed.
- Compliance with Development Restrictions
The standards for tidal wetlands permits require that the proposed activity comply with the development restrictions of 661.6. Among these restrictions is 661.6(a)(7), which imposes a 75-foot minimum setback specification on new hard surface roads and similar structures adjacent to tidal wetlands. Concerned Citizens allege this standard is not met. However, the ALJ and the other parties have correctly pointed out that this requirement does not apply to crossings of tidal wetlands. Section 661.6(a)(7) states: "Further provided, this provision [75 foot setback minimum] shall not be applicable to any portion of a regulated activity that involves a crossing or direct access to a tidal wetland on the subject property." Moreover, this project involves a modification to an existing road, not a new road. Accordingly, the ALJ's Ruling on this point is correct. The appeal is denied.
- Visual and Aesthetic Impacts
Consistent with the reasons given above related to "public welfare," I am dismissing Concerned Citizens' appeal from the ALJ's Ruling that the project's visual and aesthetic impacts do not give rise to a substantive and significant issue for adjudication. As the ALJ's Ruling noted, a State historic preservation officer has concluded that the project would have no effect on historic structures. However, the ALJ's Rulings did find an issue with regard to the adverse impact of the project on tidal wetland values, which include aesthetic appreciation. To that extent, aesthetics may be adjudicated as part of the issue concerning adverse impact on wetland values.
With that limited exception, no substantive and significant issue has been raised concerning visual and aesthetic effects. Concerned Citizens' appeal on that point is denied.
- Freshwater Wetland Impacts
The ALJ's Ruling is correct that there are no freshwater wetlands issues here, because the small (0.05-acre) area of freshwater wetlands involved here is not subject to our jurisdiction. Our jurisdiction is limited to freshwater wetlands of 12.4 acres or more, or to smaller specially mapped areas. The appeal on this point is denied. Concerned Citizens on September 16, 1996 petitioned the Department to amend the Freshwater Wetlands Map to incorporate the involved freshwater wetlands. That petition has been referred to Department Staff for appropriate action.
- Water Quality Certification
The ALJ ruled that there was no issue for adjudication concerning the water quality certification for the project. The DOT and Staff each contend that State water quality standards would not be violated by the proposed activity. On appeal, Concerned Citizens raise argumentative assertions, but at bottom offer no proof on which to conclude that a substantive and significant issue has been raised. The ALJ's Ruling is affirmed and the appeal is denied on this point.
For the foregoing reasons, Concerned Citizens' appeal is denied in all respects. This matter is remanded to the ALJ for hearings consistent with this decision and with the ALJ's July 30, 1996 Ruling.
Michael D. Zagata, Commissioner
Dated: Albany, New York
October 7, 1996