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Pierce, Sr., Charles - Order, February 4, 1995

Order, February 4, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Article 24 of
the New York State Environmental Conservation Law ("ECL") and
Part 663 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York by

CHARLES PIERCE, SR.

Respondent.

ORDER

DEC Case No. 93-2

R9-4017-93-09

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint undated, an administrative enforcement hearing was convened before John H. Owen, Administrative Law Judge ("ALJ") on March 16 and 17, May 10, 11 and 12 and July 12, 1994 against the above named respondent. The Department's Region 9 Staff ("Staff") appeared by Maureen A. Brady, Esq., Assistant Region 9 Attorney. Charles Pierce, Sr. was represented by Jonathan D. Estoff, Esq. of Buffalo, New York.
  2. Upon review of ALJ Owen's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations.

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

  1. For having modified ECL 24-0701(2) and 6 NYCRR 663.4, Item 20 by placing and spreading stone fill in the adjacent area without a DEC permit, Respondent Charles Pierce, Sr. is assessed a civil penalty of TWO THOUSAND SIX HUNDRED FORTY DOLLARS ($2,640).
  2. The following charges against Respondent Charles Pierce, Sr. are dismissed with prejudice:
    1. Alleging that he constructed, expanded or substantially modified a drainage ditch without a DEC permit in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Item 17;
    2. Alleging that he cut trees or vegetation in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Items 22, 23 and 24;
    3. Alleging that he sowed grass seed in violation of ECL 24-0701(2); and,
    4. Alleging that he engaged in and allowed prohibited activities in violation of ECL 24-0701(2).
  3. Respondent Charles Pierce, Sr. shall submit a complete application(s) for the dock and a boardwalk within sixty (60) days after this Order is served upon him and he shall complete and install the boardwalk within thirty (30) days after the permit(s) are issued and received by him.
  4. All penalties are due and payable within sixty (60) days after service of a conformed copy of this Order.
  5. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 9, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  6. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondent.

State of New York
Department of Environmental Conservation
_____________/s/_____________LANGDON MARSH, COMMISSIONER

Dated: Albany, New York
February 4, 1995

To: Jonathan D. Estoff, Esq.
Miserendino, Celniker, Seegert
& Estoff, P.C.
964 Ellicott Square Building
Buffalo, NY 14203

Charles Pierce, Sr.
4930 Webster Road
Fredonia, NY 14068

Maureen A. Brady, Esq.
Assistant Regional Attorney
NYSDEC - Region 9
270 Michigan Avenue
Buffalo, NY 14203-2999

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

In the Matter

- of -

the Alleged Violations of Article 24 of the Environmental Conservation Law (ECL) by

CHARLES PIERCE, SR.

Respondent

Case No. 93-2

R9-4017-93-09

HEARING REPORT

- by -

____________/s/_____________
John H. Owen
Administrative Law Judge

PROCEEDINGS

This matter involves Respondent Charles Pierce, Sr. ("Pierce"), who owns property on Frisbee Road, Stockton, New York bordering on Cassadaga Lake (a protected freshwater wetland), allegedly filling portions of the Lake's shore area with stone fill, excavating in connection with construction of a drainage ditch, installing a dock, cutting trees and vegetation, sowing grass seed, and engaging in certain prohibited outdoor activities - all allegedly in violation of the freshwater wetlands law and regulations.

Pursuant to a duly served Notice of Hearing with Complaint attached, undated, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 9 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding conducted in accordance with the State Administrative Procedure Act and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Article 24 of the New York State Environmental Conservation Law ("ECL"), against Pierce.

Pierce served a written answer dated January 31, 1994 admitting that Pierce owned the site but denying the remainder of the allegations.

In accordance with the Notice of Hearing, an adjudicatory hearing concerning the site was convened before Administrative Law Judge ("ALJ") John H. Owen on March 16 and 17, May 10, 11 and 12 and July 12, 1994 at the Department's Region 9 Headquarters at Buffalo, New York, except for the May 11, 1994 session which was held at the Department's satellite office at Dunkirk, New York. Maureen A. Brady, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Pierce appeared by Jonathan D. Estoff, Esq., of Miserendino, Krull & Foley, P.C. of Buffalo, New York.

Staff called as witnesses Thomas Jurczak, Senior Wildlife Biologist, Region 9 (Olean Office); Joseph Galati, Senior Aquatic Biologist, Region 9 (Olean Office); Bradley Blizzard of Cassadaga, New York, President of the Cassadaga Lake Association; Wayne Hines of Fredonia, New York, employed by Niagara Mohawk Power Corporation; Kenneth Taft, Deputy Regional Permit Administrator, Region 9 (Olean Office); Scott Hans of Saegertown, Pennsylvania, an Environment Resource Specialist with the U.S. Army Corps of Engineers; and Robert O'Connor, an Environmental Conservation Officer, Region 9 (Buffalo Headquarters).

Pierce called Peter J. Burke, Esq., of Buffalo, Pierce's prior counsel in the matter; Sam Drayo, Esq., an attorney of Fredonia, New York, Pierce's counsel in connection with his purchase of the site; Albert Storer of Stockton, New York, a contractor who sometimes worked with Pierce; and Pierce himself.

Some 39 Exhibits were received in evidence and the record closed upon receipt of the last of the parties' post-hearing memoranda on September 12, 1994.

By letter dated March 9, 1994, prior to the opening of the hearing on March 16, 1994, Staff requested that the complaint (which then contained only the stone fill allegations) be amended to include allegations that Pierce had clear cut vegetation. Pierce's counsel by letter also dated March 9, 1994 objected that the clear cutting of vegetation was resolved by a prior order on consent and that the proposed amendment was untimely. Staff responded by letter also dated March 9, 1994 that the clear cutting took place subsequent to the execution of the order on consent and that the proposed amendment was not untimely.

The ALJ reserved decision and agreed to hear oral argument on March 16, 1994.

The hearing was convened on March 16, 1994 at which time oral argument was heard about the proposed amendment. At that time, Staff proposed another amendment seeking to add allegations about excavation in connection with a drainage ditch. Pierce's counsel made the same objections to this proposed amendment.

After hearing oral argument the ALJ ruled that whether the new allegations were resolved by the order on consent was a question of fact and these new allegations could be the subject of a new proceeding. Rather than have a new proceeding the ALJ granted the amendment, adjourned the hearing on the new allegations to a future date, directed Staff to serve and file an amended complaint containing all allegations, and directed that the hearing on the stone fill allegations then proceed as scheduled on March 16, which it did.

At the opening of the session on March 17, 1994 Staff counsel proposed another amendment relating to installation of a dock and stated that Staff had a further witness (Blizzard) on the stone fill allegations even though all thought that Staff's proof upon that issue had concluded on March 16, 1994. As to the dock issue, there was a reference to an unpermitted dock in the "Wherefore" clause of the first complaint but the dock was not actually pleaded as a violation. The objection of Pierce's counsel was that a Staff member had allegedly told Pierce that he did not need one type of permit for the dock but failed to tell him that he would need another type of permit. As to this issue it was ruled that the State could not be estopped from charging the violation but that Pierce would be allowed to address the issue of erroneous Staff permit advice as it would relate at least to penalty considerations. As to the further stone fill witness, Pierce's counsel objected that Pierce had relied upon Staff's resting on that issue and that Pierce was prejudiced in that he had called a witness (Burke) after Staff had rested. It was then ruled by the ALJ that the new witness could be called in that Pierce was not actually prejudiced because Blizzard's testimony was not to rebut Burke's testimony.

On March 25, 1994, while the hearing was in recess, Staff served an amended complaint now containing the allegations about stone fill, excavating for a drainage ditch, a dock, cutting vegetation, sowing grass seed and engaging in prohibited outdoor activities. Pierce filed another answer dated April 25, 1994 designated as an "Amended Answer" rather than an "Answer to the Amended Complaint" in which he again admitted he owned the site, admitted he installed a dock, and denied the remainder of the allegations.

After the close of the hearing and the setting of a schedule for the submission of post-hearing memoranda on May 12, 1994, Staff by letter dated June 22, 1994 requested a yet further amendment to the complaint. This new proposed amendment had to do with Pierce having allegedly installed "pilings, a dock or other structure" after a site visit which had taken place on May 11, 1994. By letter dated June 24, 1994 Pierce's counsel denied that Pierce installed a new dock but admitted he installed a dock in June 1993 after being told by DEC Staff that a permit was not needed. The ALJ by telephone allowed the amendment and reopened the hearing, with the last session being held on July 12, 1994. Because of the shortness of time between the setting of the reopening and the reopened date a further written answer was not required from Pierce, rather the ALJ deemed all of the new allegations denied.

The Site

Pierce purchased the site in the summer of 1992. It is shown on a survey (Exhibit 14) to be 100 feet wide (north and south) on Frisbee Road and, + 121 feet wide at the Lake, and about 550 feet in length (east and west) between the Road and the Lake. Niagara Mohawk Power Corporation ("NIMO") had acquired, prior to Pierce's purchase, former railroad beds and other property on the site which cut a path (north and south) about 136 feet wide (east and west) across the site down at the Lake end of the site extending to less than 50 feet from the shoreline, the east boundary. A diagram of the site, based on Exhibit 14, is attached as Appendix A to this Report. It shows the approximate locations of the wetland flags, the adjacent area boundaries, and where most of the violations were alleged to have been committed.

The Applicable Law

ECL 24-0701(2) provides in pertinent part:

"Activities subject to regulation shall include...draining,...any form of filling, or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly, erecting any structures, roads, the driving of pilings, or placing of any other obstructions whether or not changing the ebb and flow of the water...and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in section 24-0105 of this article..."

The Charges and the Factual Proof Required

As noted, Pierce is charged with various activities in freshwater wetlands or the adjacent area, that is placing stone fill, excavating in connection with a drainage ditch, installing pilings and a dock, cutting trees and vegetation, sowing grass seed, and engaging in prohibited outdoor activities.

In order to establish these charges Staff must have proven by a preponderance of the evidence the following five (5) elements: 1) that the activity took place; 2) that it took place in a protected freshwater wetlands or its adjacent area; 3) that it was a regulated activity; 4) that Pierce performed or is otherwise responsible for the activity; and 5) that Pierce had no DEC permit authorizing such activity.

The core of the dispute was that while the Staff's position was that all the activities were violations (for which a total $6,000 penalty was sought) Pierce considered that all of the activities, except the dock and the stone fill, were exempt from DEC regulations; as to the stone fill he thought that without him being the owner and no eye witness to its placement and spreading he could not be held responsible; and as to the dock he thought he should receive a permit but, and here Staff agreed, no penalty.

Discussion of Alleged Violations

Background

On May 24, 1993 Galati and Jurczak were at the site, called there by ECO O'Connor who had received a complaint from Blizzard. They observed that the wetland had been clear-cut of vegetation and had been filled with material from the old railroad beds. This resulted in the Department issuing an order to stop work, after which Pierce signed an Order on Consent which required a penalty and remediation.

Protected Area Issue

Jurczak, Staff's Senior Wildlife Biologist, testified without contradiction that the final Freshwater Wetland Map for the Cassadaga Region was promulgated in January 1986 and filed with the Chautauqua County Clerk's office and elsewhere. A copy of the portion of that map concerning the Cassadaga Lake area (Exhibit 3) was received in evidence without objection. It shows the lower Lake area as a Class I wetland. That designation is based upon a Freshwater Wetland Data and Classification Form (Exhibit 4 in evidence) prepared by Staff witness Taft, Staff's present Deputy Regional Permit Administrator, which indicates that the area has four Class II characteristics which makes it a Class I area.

Jurczak also testified without contradiction that Pierce's property is located within a portion of a wetland designated as Class I.

Jurczak located the wetland boundary at the site on May 24, 1993 by determining where the dominant wetlands vegetation ended. He said he marked the points with flags on each side of the site, about 90 feet from the Lake on one side and 100 feet on the other side and on or near the Lake side of the slope rising to the old railroad beds and now basically NIMO's property.

At the site visit Jurczak and Galati, Staff's Senior Aquatic Biologist, used a measuring reel to fix the inland boundary of the adjacent area at 100 feet inland from the wetland boundary. This carried the adjacent area partly across (landward) the NIMO property which is shown on the survey (Exhibit 14) to be 136 feet wide.

Stone Fill

On July 1, 1993, about two weeks after Pierce had signed the Order on Consent resolving some prior clearing and filling violations, Galati was at the site and observed washed clean stone fill in what he considered the adjacent area. Galati said that this fill was not present when he was at the site on June 25, 1993 checking on compliance with the Order on Consent. He took photographs (Exhibits 9 and 10) on July 1 of which Exhibit 10 shows the stone fill but neither of those photographs in and of themselves shows whether this fill was in the adjacent area. Galati did say, however, that the stone fill was in the old railroad bed, that the wetland boundary flags were about 15 feet waterward of the toe of the slope to the old railroad beds, leaving the adjacent area (100 feet) going about 85 feet up and onto the 136 foot wide NIMO property.

Jurczak's statement that the flags were 90 and 100 from the water would carry the adjacent area landward virtually all the way across NIMO's property but Galati's statement that the flags were about 15 feet waterward of the toe of the slope squares much better with photo Exhibit 8 which shows both the flag on the south side and the toe of the slope.

Burke, Pierce's former counsel, testifying for Pierce, said he was at the site on June 3, 1993. He made no measurements nor did he pace off any distances, so that his mere estimate that the wetland flags were considerably closer to the water carries little weight and, in any case, the landward side of the adjacent area was, as noted, specifically measured at the site visit.

Blizzard, President of the Cassadaga Lake Association, testifying for the Staff after Burke, said he saw stone fill being placed at the site and in fact in the adjacent area. He said he was able to determine the adjacent area because he had one or more maps from the Staff and the wetland flags were still visible. The difficulty with Blizzard's testimony is that he was positive that the date he saw stone fill being spread was July 2 or 3, 1993. Yet Galati was there on July 1, 1993 and saw stone fill already spread as shown in four of his photographs (Exhibit 10) upon each of which he put handwritten notes beginning with "7/1/93..."

Blizzard also had said he saw Albert Storer's son using frontloaders and backhoes to spread the stone on July 2 or 3, 1993 and he knew Albert Storer sometimes did work for and with Pierce.

Albert Storer, a contractor who sometimes worked with and for Pierce, then testified for Pierce and said he does not sell stone fill but rather crushed stone and while his son may have been at the site on July 2 or 3, 1993 with heavy equipment it was Albert Storer's understanding ("I'm almost sure of it") that his son was working around a ditch near the stone fill area doing work required by the Army Corps of Engineers. The son did not testify. He could have been brought by Pierce or subpoenaed by Staff.

Blizzard is somewhat over-zealous about the Lake. He and his organization made numerous complaints to the DEC about Pierce and wrote to a number of other State officials about Pierce. He sat at the hearing all morning of the first day (March 16) and knew that the hearing was limited at that time to stone fill, but he did not make known to Staff counsel until that evening that he allegedly saw stone fill being placed.

Blizzard, as noted, was definite that the stone fill was placed on July 2 or 3 and Galati was equally definite that the stone fill was already there and spread on July 1. Because of the discrepancies, Blizzard's demeanor and so forth, Galati is credited over Blizzard and, as a result, there is no eyewitness proof of when or by whom stone fill was placed.

Pierce also made much of who owned the old railroad beds and NIMO's other property and overplayed this somewhat. The parties were directed to obtain and submit certified copies of all deeds recited in the survey (Exhibit 14). The deeds were called for not because NIMO's ownership of this property would relieve Pierce of liability (if he was responsible for placing the stone fill), as Pierce apparently thought, but rather because ownership might well be a significant factor in determining whether there would be sufficient circumstantial evidence to hold Pierce responsible without ownership, eye-witness or admission evidence.

The deed references in the survey (Exhibit 14) suggested that NIMO only had rights of way but did not own the land. The deeds themselves (Exhibits 18, 19 and 20), however, use such terms as "release and convey", "grant and release...forever" and so forth, leading to the conclusion that NIMO owns the land, except perhaps the 20 foot strip on the landward side over which NIMO appears to have only a right of way.

It appears that all of the stone fill was placed on NIMO's land. While none was placed on the waterside slope, it was present landward as the slope leveled off and then proceeded landward well across NIMO's land. Whether some of the stone fill is beyond the adjacent area at the landward side of NIMO's land is not relevant since most of it is waterward of the landward adjacent area boundary.

As to who is responsible for the placement and spreading of stone fill, there are several relevant factors:

In the first place, while Pierce does not own the old railroad beds or other property used by NIMO (except perhaps the 20 foot strip on the landward side), he owns lands on both sides of it and he has from the beginning exercised control over NIMO's land and treated it for all purposes as his own except perhaps when NIMO people are at the site. Pierce bought the site basically for summer recreational use. Pierce was working the site with Storer prior to May 1993 after which they each signed consent orders (Pierce signed June 15, 1993) resolving some prior violations. Some of the photographs in evidence show on or near NIMO's property a utility power pole (Exhibit 9), a camper, a power boat with trailer, a piece of heavy equipment (Exhibit 16), and a picnic table and chairs (Exhibits 26 and 31). These show that Pierce was making extensive recreational use of the site.

Secondly, after observing the stone fill on July 1, 1993, Galati wrote to Pierce on July 7, 1993 (Exhibit 11) pointing out that it was a violation; yet Pierce (who had counsel throughout) never responded to this letter.

Thirdly, sometime prior to July 27, 1993, Pierce asked NIMO for its consent to a 15 foot wide driveway across NIMO's land, to be of stone. On that date NIMO wrote to Galati that it had no objection provided the grade was not materially changed. It makes no difference whether Pierce's request was made before or after the June 25-July 1, 1993 period in which the stone fill was placed and spread, as it shows his desire and intent to put in stone fill on NIMO's property in the adjacent area.

In the fourth place, although Pierce did testify he never denied having placed and spread the stone fill or being otherwise responsible for it.

In these circumstances, the idea that between June 25 and July 1, 1993 some unidentified person, without Pierce's knowledge and consent, brought to the site and spread a large quantity of stone fill on NIMO's property, cannot be accepted, If this had actually taken place, surely Pierce would have brought this out in his defense and, even prior to that, would have been on record somewhere as filing a complaint about such a trespass.

Thus 1) stone filling took place -- Galati and others saw it and it was still visible at the site visit; 2) the stone was placed for the most part in the adjacent area -- the Staff witness pacings and tape measurements of distance is credited over the mere estimates of defense witnesses, and there can be no question left after the measuring of 100 feet from the flags at the site visit; 3) Pierce is responsible -- as previously discussed, this is the only rational conclusion available; 4) stone filling in the adjacent area is unlawful under ECL 24-0701(2) and 6 NYCRR 663.2(b); and 5) even Pierce did not claim he had a permit for stone filling.

Staff has not requested that the stone fill be removed.

Excavating Drainage Ditch

The subject drainage ditch is on the east side of the site and at least partly in the adjacent area, running east and west through the old railroad bed area, into the wetland and into the Lake.

Galati, who had been to the site five times (May 24, June 3, June 25, July 1 and July 28, 1993) before the May 11, 1994 site visit, said he first noticed the ditch on July 28, 1993. He took photographs of it (Exhibits 32 and 33) but not until March 22, 1994 when there was up to a foot of snow in the area.

Galati conceded that the ditch area had been disturbed before he first was at the site and that grading had been carried out near the ditch to comply with the consent order.

His opinion that the ditch was not natural but man or machine-made Galati based upon his view that the ditch was "...pretty uniform in size and width" and too "straight" to be natural. Yet the photographs do not show the ditch to be either regular in shape or width or even straight.

Galati also allowed for the possibility that this was an old water course or a depression where there had been a culvert of stone or other material which had deteriorated and been removed, except that he did not believe that the water would likely follow the same path as the removed culvert.

The Army Corps of Engineers had directed Pierce to remove some fill in the general area of the ditch but Galati thought this work, for which heavy equipment may well have been used, was somewhat west of the ditch and out of the DEC's regulated area. Galati did refer to this area as shown in the photos (Exhibits 16 and 17) and described it as right near where the bulldozer is in those photographs, taken July 3, 1993.

Relevant also to whether the ditch was natural or dug so long ago that it would be exempt from DEC regulation is the fact that when Galati was first at the site in late May, June and early July he may not have paid attention to the north and west areas of the site; either that or there was no water flow at that time of year. Apparently the only way Galati even noticed the ditch on July 28, 1993 was because on that date the federal engineers were interested in those areas and were having work done there.

Hans, a biologist with the Army Corps of Engineers, said that Pierce was allowed to partially replace a stone culvert (running north and south and flowing toward the ditch at about a right angle) with a plastic one but they required Pierce to shorten the culvert's length so as to cut it off (rather than continuing the flow north to a larger culvert) right at the subject ditch.

Hans said he remembered a depressional area on July 8, 1993 which was wet but without flow where the subject ditch is located. He also indicated that the ice and snow run-off could fully account for the views shown in Galati's late March 1994 photographs (Exhibits 32 and 33).

Hans also said that he thought the removal of the railroad grade altered the natural drainage at the site causing the flow to be, instead of north under the old beds, east towards the Lake in whatever depressional area was available, although he did say that without the depressed areas he would expect some very slow flow to the north.

Storer for years had worked for railroads such as the old Dunkirk Allegheny Valley Railroad in the area of the site and from Buffalo to Cleveland restoring washed out railroad beds, ditching and other work. When he was helping Pierce select a Lakefront lot to purchase he noticed at the site a decaying stone box on the west side of the railroad bed through which water was flowing toward the Lake and he identified the flow as being in the depression shown in Exhibit 32 and 33. He and Pierce removed the old stone box and left the flow and depression as they were. This, said Storer, was sometime in the summer of 1992, long before the Department issued the stop order.

It is not known why Galati did not photograph the ditch on or about July 28, 1993 (when he first noticed it) and not until late March, 1994. There was little if any water flow when Galati first saw the ditch and he conceded that the shape of the bottom and sides of the ditch were important to determining whether the ditch was man-made or man-altered. The photographs taken in late March, 1994 show an irregularly shaped, crooked stream, with the bottom totally covered by water and one side with its actual shape masked by a heavy covering of ice and snow and the other side (mostly exposed by sunlight) giving no evidence whatever that it is anything but a natural formation.

While the ditch is partially in the adjacent area and flows through the wetland into the Lake, it has not been proven that Pierce is responsible for "constructing, expanding or substantially modifying [a] drainage ditch" 6 NYCRR 663.4, Item 17.

The ditch has not been proven to be anything but in its naturally developed state and not expanded or substantially modified.

Even if Pierce or his agent Storer had unlawfully created or affected the ditch in some way when they were leveling the railroad grade or working on replacing the pipe in the intersecting culvert at the direction of Hans, all of that work was completed prior to the issuance of the Department's order to stop work and any violation was resolved by the consent order subsequently issued.

The Dock

At the June 3, 1993 meeting at the site Galati told Burke, then Pierce's counsel, that no permit was required for the dock as long as it was under 200 square feet. Taft overheard this and being Deputy Regional Permit Administrator for Region 9 he realized that while no ECL Article 15 permit was required an Article 24 permit was required. Taft said he thought of telling this to Burke, and should have, but he did not. He also thought of telephoning Burke after the meeting, but when Galati said he would send a letter to Pierce Taft let it go.

Galati did send Pierce a letter dated July 7, 1993 (Exhibit 11) advising that an Article 24 permit was needed but Pierce put the dock in before he received the letter. Under date of August 23, 1993 Pierce applied for an Article 24 (6 NYCRR Part 662 and 663) permit (Exhibit 13) for a 37 feet by 4 feet (148 square feet) dock and attached a photograph of the dock already put in.

On September 7, 1993, Region 9 sent Pierce a Notice of Incomplete Application (Exhibit 34), but later Pierce was informed that his application would not be further processed and no permit would be issued until this enforcement proceeding was concluded.

At the hearing Pierce was assured that he would ultimately receive a permit provided that there were no substantial changes in the dock or in the application.

Staff seeks no penalty for the dock.

Cutting of Trees and Vegetation

Galati said that a thin, twin-trunk tree was removed, some low vegetation cut and "another" tree removed.

The twin-trunk tree is shown in photo Exhibit 8 taken by Galati on June 25, 1993 and in its enlargement (Exhibit 30) and is shown to be on the south side of the site much less than 100 feet landward of the wetland boundary flag; and it is missing from photo Exhibit 10 taken by Galati on July 1, 1993 and in its enlargement, Exhibit 29.

Pierce frankly admitted that, when he was doing the regrading and shaping required by the consent order, the blade of the bulldozer he was using struck the tree and partly tipped it over exposing some of the roots.

Being experienced at landscaping, Pierce said he knew the tree would not survive that way. He thought of backfilling around the roots and lower trunk but he did not do this because he thought he would be charged with another fill violation. As a result the tree died.

But even if Pierce cut the tree down or had it cut down this appears to have been an exempt activity. On June 3, 1993 Galati furnished to Pierce at the Site a Freshwater Wetlands Program Applicant's Guide (Exhibit 6) and this states on page 3:

"Exempt Activities

Certain activities are exempt from regulations and DO NOT require a permit. The most common of these are listed below.

1. ...

5. Selective cutting of trees and harvesting of fuel wood (not clearcutting)."

While the Guide (Exhibit 6) is not a definitive statement of the law, the applicable regulations do state that "agricultural activity" is exempt from regulation (6 NYCRR 663.4, Item 9).

"Agriculture means cultivating and harvesting products, including fish and vegetation, that are produced naturally in freshwater wetlands..." 6 NYCRR 663.2(e).

Agricultural activity is further defined at 6 NYCRR 663.2(c):

"Agricultural activity means:

(1) the activity of an individual farmer or other landowner in:

(i)...

(iii) harvesting the natural products of wetlands;

(iv) the selective cutting of trees;

..." (6 NYCRR 663.2(c); emphasis added)

"Selective cutting of trees" means:

"...any cutting of trees within the boundaries of a freshwater wetland or its adjacent area that is not clear-cutting, as defined in subdivision (i) of this section." (6 NYCRR 663.2(z)(3)(aa))

"Clear-cutting means any cutting of trees over six inches in diameter at breast height over any 10-year cutting cycle where the average residual basal area of trees over six inches in diameter at breast height remaining after such cutting is less than 30 square feet per acre, measured within the area harvested; provided, however, that where regeneration is assured by stand conditions such that after such cutting, the average residual basal area of trees at least one inch in diameter at breast height is at least 30 square feet per acre, measured within the area harvested, a clearcut will not be deemed to have taken place unless the average residual basal area of trees over six inches in diameter at breast height is less than 10 square feet per acre, similarly measured." (6 NYCRR 663.2(i))

The loss of the twin-trunk tree represents selective cutting and not clearcutting. Staff offered no proof under the above clearcutting definition.

As to the low vegetation allegedly cut, as noted above, a landowner harvesting the natural products of wetlands is an exempt activity, as is "...the clearcutting of vegetation, other than trees, for growing agricultural products" (6 NYCRR 663.2(c)(1)V); and "the cutting but not elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected" (6 NYCRR 663.4, Item 24, requires only a letter of permission from the DEC.

As shown above, the landowner has the same exemption as a farmer when harvesting the natural products of a wetland, a farmer may clear-cut vegetation to grow a crop, and any landowner may cut an extensive amount of vegetation as long as he does not destroy or eliminate it.

Pierce testified that he did not realize that any vegetation was lost but the only way it could have been lost was if some of the fill spilled over onto it when he was doing the regrading and shaping required by the consent order.

The Staff bases its claim that low vegetation was cut basically upon before and after photographs taken by Galati on June 25, 1993 (Exhibit 30) and July 1, 1993 (Exhibit 29).

A way to compare the two photographs is to recall that the utility pole installed by Pierce (visible in Exhibit 29) was very near to the twin-trunk tree (visible in Exhibit 30) but not visible in Exhibit 29). The low vegetation was supposed to be immediately to the east (or to the right on the photographs) of this point; however, even though the after photo is darker in texture there appears to be more vegetation in the after photo than in the before photo.

Nor did anyone from the Staff inspect along the vegetation line for evidence of cutting, uprooting or other disturbance.

As to "another" tree being cut, Galati referred to photo Exhibit 31 which is a series of three photographs set up vertically. There does appear to be some rather tall, thin growth appearing in the top photograph (taken May 24, 1993 that is not visible in the middle photograph (taken July 3, 1993) Yet it has not been excluded that the much heavier growth in the area which took place during June 1993 and evident in the top photo has covered over the other "tree"; and there was no proof that anyone explored this new growth to locate this other tree or to look for a stump, uprooting, ground disturbance or other evidence of cutting or uprooting; and in any case this other tree (as well as the twin tree) is not in the wetland but well into the adjacent area, and its loss represents selective cutting rather than clear-cutting.

Sowing Grass Seed

Pierce told of a sort of "cart before the horse" conversation at the site meeting on June 3, 1993 in which he says he was told by a Staff member, either Taft or Galati, that he could mow the wetland provided he did not use a tractor and his lawn mower did not make ruts in the wetland, and that the conversation backed around to telling him seeding grass was neither prohibited nor required.

Taft countered that it was Hans, talking about federal regulations, who said these things. Here again Taft conceded that he heard Pierce being told this but "it slipped my mind" to see that Pierce received correct advice.

Pierce did the seeding the next day, June 4, 1993, and it resulted in a nice-looking lawn, as shown in photo Exhibit 27.

Planting grass seed to develop a lawn in a wetland is not a specifically prohibited activity; indeed apparently only Region 9 requires a permit for it, with the other Regions across the State interpreting the regulations differently.

Jurczak, Galati and Hans agreed that the primary inhibitor of the grass area regeneration was that not enough fill had been removed under the consent order. Galati said he approved nevertheless because he thought that further removal would cause the equipment to become mired in the wetland.

The lawn stabilizes the wetland, prevents erosion, and enhances the aesthetic values. Against this, as Taft testified, it competes with wetland species and slows down somewhat their regeneration.

On balance, however, the lawn cannot be found to "substantially" impair "...any of the several functions served by freshwater wetlands or the benefits derived therefrom..." (ECL 24-0701(2)).

The Staff has not sought to have the lawn removed.

Prohibited Outdoor Activities

Pierce held a party for his 79 year old grandfather from Pennsylvania at the site on July 4, 1993, at which many other Pierce family members were in attendance.

Blizzard came along with one or more members from the Lake Association in a boat from which they took six color photographs (Exhibits 23, 24 and 25) of the activities.

The grandfather is shown to be pulling an aluminum boat out of the Lake. There are tables on the stone fill, and a tent, a volleyball net and cars beyond the adjacent area; there are people on the dock and in and near the tent; there is a porto-john by the camper which is either on the stone fill or beyond the adjacent area; there are people on the stone fill and inner tubes around the dock and lake shore; and there are no visible paths over the wetland.

6 NYCRR 663.2, Item 3 exempts:

"...Boating, hiking, swimming, camping, picnicking and other similar nonmotorized forms of outdoor activity, where no significant impairment of the wetland or its benefits is involved."

The activities noted were all random and there is no evidence that the wetland or the adjacent area was trampled or had any paths, ruts or was in any way impaired significantly.

The activities complained of are clearly exempt from regulation.

Discussion of Civil Penalties and Remediation

Penalties

Penalty recommendations in freshwater wetlands matters call into play the Commissioner's Civil Penalty Policy ("CPP") dated June 20, 1990 and a Freshwater Wetlands Enforcement Guidance Memorandum issued February 4, 1992.

The Memorandum is intended to apply the CPP to the specific freshwater wetlands consideration.

Both the CPP and the Memorandum refer to economic benefit as a part of penalty calculations. Economic benefit is the estimated amount of money saved by a respondent or an additional profit realized by a respondent as a result of non-compliance. The Staff has made no economic benefit calculation and none can be made by the ALJ.

The other main factor in penalty calculation is the gravity component.

The CPP divides the gravity component into two main subdivisions: 1) Potential harm and actual damage caused by the violation and 2) Relative importance of the type of violation in the regulatory scheme.

The potential harm of the stone fill (the only violation found here, other than the dock for which a permit will be issued) is minimal. Galati said that the old railroad beds, before the stone fill was placed, consisted of cinders and gravel material (the rails and ties had been removed long ago) and while vegetation would be preferable if it were bare earth the stone fill is very effective in preventing erosion and grass or vegetation will eventually grow up through it and, as noted, the Staff does not seek the removal of the stone fill.

The importance in the regulatory scheme is addressed in the Memorandum in terms of the compatibility of the stone fill with the environment. More specifically, 6 NYCRR 663.4, Item 20 classifies fill placement in an adjacent area as "P" (Permit required) "N" ("Usually compatible"). Under the Memorandum (page 5) this places the stone fill here in the middle ground of the gravity factors.

The CPP states that the gravity component is subject to downward or upward adjustment based on certain factors such as culpability, violator cooperation, history of non-compliance, ability to pay, and any other relevant factor.

Pierce is culpable for the stone fill as it was placed intentionally to make easier the passage of vehicles, such that a 10% upward adjustment is proper here, $3,000 (the maximum penalty) plus $300: $3,300 While this is over the maximum it is only a part of the calculation. If the calculation, in the end, were to result in an amount over $3,000, the recommended penalty would be reduced to $3,000.

Pierce, as a violator, was extremely cooperative with the Staff. He fully and promptly complied with the consent order. He attended a number of meetings at the site and after the consent order, apart from the stone fill, he did nothing more except in accordance with his understanding of the Staff's wishes. His total willingness to comply and commit no further violation is illustrated by a boating emergency in front of the site in late June or early July 1994. Pierce telephoned O'Connor before he would even allow the distressed boat (with passengers) to tie to the dock or be pulled up on the wetland. In the end Pierce towed the boat with his own boat down to a DEC boat launch at the end of the Lake. There should be a 20% reduction from the $3,300 penalty for this factor, making it $2,640.

There was no evidence of any prior violations by Pierce other than those resolved by the consent order.

Pierce offered no proof of inability to pay penalties, so no adjustment is in order here.

There is at least one other relevant factor and that is that the stone fill inflicts only minimal environmental damage to the adjacent area and that is apparently the reason that Staff is willing to have it remain. This should not result in any increase in the penalty.

Thus Pierce should be assessed a civil penalty of $2,640.

Remediation

As stated earlier, the Staff does not seek removal of the stone fill and has not sought removal of the lawn nor the dock.

Other remediation requests by the Staff are set forth in the "Wherefore" clause of the amended complaint where Staff seeks to have Pierce directed to:

  1. Submit a complete application for a permit for the seasonal dock within 30 days of the Commissioner's Order. In addition, any future changes in dock configuration, dredging, or other activity related to the dock must be permitted by the Department.
  2. Apply for a permit to build a boardwalk 6 feet wide extending from the dock to the adjacent area of the CS-1 wetland within 30 days of the Commissioner's Order.
  3. Complete construction of the boardwalk within 30 days after receipt of the Permit.
  4. Cease all mowing, cutting and clearing of vegetation, within the Wetland and the adjacent area. A six foot wide path may be mowed for access to the dock prior to completion of the boardwalk. Upon construction of the boardwalk, the wetland and adjacent area shall be allowed to revegetate.
  5. Remove debris, consisting of dirt and tree stumps, limbs, etc., from the properties next to the adjacent area within 30 days of the Commissioner's Order. Respondent must provide the Department with documentation prior to removal that the neighboring landowners consent to removal of the debris.
  6. Plant two rows of shrubs along the boundary of the adjacent area and the wetland, in accordance with Exhibit A, which is attached, within 30 days of the Commissioner's Order.
  7. Cease use of the adjacent area except for access to the existing trailer and the boardwalk.

Requiring submission of a complete application for the dock (a) and for the boardwalk (b), as well as building the boardwalk within 30 days after the permit is issued (c), are all reasonable requests.

Pierce cannot be directed to cease all mowing (d) if he is not adjudicated in violation concerning the seeding of the lawn; and the same is true concerning cutting vegetation(d) if he is not adjudicated to be in violation.

There was little if any evidence offered that Pierce had dumped debris on neighboring lands (e), no evidence of it on the site visit and no evidence of complaints from neighbors; and, in any case, this matter is for a civil court unless Pierce is found to be dumping debris in the adjacent area of the neighboring lands, something with which he has not even been charged by the Staff.

Planting two rows of shrubs along the boundary between the wetland and the adjacent area (f) is related sufficiently to the stone fill violation and might be reasonable (as long as the shrubs did not block the boardwalk) except for the fact that this will bar access to the wetland (for instance for boating, wading, tubing or swimming in the Lake) except from off the boardwalk. This restricted access will harm the wetland as a result of the repeated traffic in that limited area. Random access to the wetland is far more preferable.

Barring use of the adjacent area except to get to the camper or the boardwalk (g) is unreasonable. On the landward side of NIMO's property (including the 20 foot wide right of way) there is a section about 60 feet wide. If the wetlands flags are about 15 feet from the waterside of NIMO's property only 85 feet of the adjacent area is on NIMO's property leaving about 60 feet left of the 136 foot wide NIMO property not in the adjacent area. which is out of the adjacent area. Pierce can make unrestricted use of this area and that will lessen his use of the adjacent area and Pierce has a right to use the adjacent area as long as he does not do serious damage to it.

FINDINGS OF FACT



As to Violations

  1. The DEC has jurisdiction over the site in that the Freshwater Wetland Map for the Cassadaga Region was promulgated in January 1986 and filed in the Chautauqua County Clerk's Office and elsewhere.
  2. The site is in a Class I wetland area.
  3. The freshwater wetland boundary is approximately 15 feet waterward of the toe of the slope to the old railroad beds and the adjacent area runs landward approximately 85 feet up and onto the old railroad beds on NIMO's property.
  4. For the reasons stated Pierce placed and spread or had placed and spread stone fill in the adjacent area.
  5. Pierce did not construct, expand or substantially modify a drainage ditch in the adjacent area or in the wetland.
  6. Pierce constructed and installed a dock in the wetland area.
  7. Pierce selectively cut a twin-trunk tree but did not clear-cut any trees.
  8. Pierce did not cut any vegetation.
  9. Pierce did not cut the "other" tree.
  10. Pierce planted a lawn in the wetland area but the lawn does not substantially impair the wetland within the meaning of ECL 24-0701(2).
  11. The outdoor activities at the site are within the activities stated to be exempt at 6 NYCRR 663.2, Item 3.

    As to Penalties

  12. Pierce gained no economic benefit.
  13. Potential harm of the stone fill is no greater than that already caused and the actual damage is minimal.
  14. The importance in the regulatory scheme places the stone fill in the mid-range under the Memorandum.
  15. Pierce is culpable for the stone fill and its placement and spreading was intentional.
  16. Pierce was extremely cooperative with the Staff.
  17. There were no prior violations by Pierce except those resolved by the consent order.
  18. There was no proof of Pierce's inability to pay penalties.

CONCLUSIONS OF LAW

  1. Pierce violated ECL 24-0701(2) and 6 NYCRR 663.4, Item 20, by placing and spreading stone fill in the adjacent area without a DEC permit.
  2. Pierce violated ECL 24-0701(2) and 6 NYCRR 663.4, Item 31, by constructing and installing a dock in the wetland without a DEC permit.
  3. There was insufficient evidence that Pierce engaged in any of the following activities in the adjacent area or wetland area without a DEC permit:
    1. Constructed, expanded or substantially modified a drainage ditch in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Item 17;
    2. Cut trees or vegetation in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Items 22, 23 and 24;
    3. Sowed grass seed in violation of ECL 24-0701(2); and,
    4. Allowed outdoor events and usages in violation of ECL 24-0701(2).

RECOMMENDATIONS

  1. For having violated ECL 24-0701(2) and 6 NYCRR 663.4, Item 20, by placing and spreading stone fill in the adjacent area without a DEC permit, Pierce should be assessed a civil penalty of $2,640.
  2. The following charges against Pierce should be dismissed with prejudice:
    1. Alleging that he constructed, expanded or substantially modified a drainage ditch without a DEC permit in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Item 17;
    2. Alleging that he cut trees or vegetation in violation of ECL 24-0701(2) and 6 NYCRR 663.4, Items 22, 23 and 24;
    3. Alleging that he sowed grass seed in violation of ECL 24-0701(2); and,
    4. Alleging that he engaged in and allowed prohibited activities in violation of ECL 24-0701(2).
  3. The stone fill, the dock and the lawn should remain as they are.
  4. Pierce should be directed to submit a complete application for permit(s) for the dock and boardwalk within 60 days after receipt of the Commissioner's Order and be further directed to complete construction and installation of the boardwalk within 30 days after receipt of the permit.
  5. Pierce should not be directed to cease mowing the lawn, cease cutting trees or vegetation, or remove debris from adjoining properties.
  6. Pierce should not be directed to plant shrubs along the wetland boundary or to cease use of the wetland area or the adjacent area or have his use of these areas restricted in any manner.
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