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Romer, Anna - Order, July 2, 2003

Order, July 2, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 15 of the Environmental
Conservation Law (ECL) of the State of New York and Part 608 of Title 6 of the
Official Compilation of Codes Rules and Regulations of the State of New York (6
NYCRR) by

Anna Romer,

Respondent.

ORDER

DEC Case No.
R6-20000620-44

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated June 20, 2001, an administrative enforcement hearing was held before Administrative Law Judge (ALJ) Richard R. Wissler. The Department of Environmental Conservation (the Department) appeared by Randall C. Young, Esq., Acting Regional Attorney in the Department's Region 6 office. The Respondent appeared by Mark G. Gebo, Esq., of the law firm of Hrabchak & Gebo, P.C., 216 Washington Avenue, Suite 300, Watertown, New York 13601.
  2. Upon review of ALJ Wissler's Hearing Report (copy attached) and the record in this proceeding, I concur with its Findings of Fact, Rulings on Motions, Conclusions and Recommendations. The Report establishes that the Respondent, on or about October 1996, was responsible for the construction of a seawall involving the placement of fill materials including concrete and earthen backfill behind and landward of such seawall, below the mean high water level of Lake Ontario, a navigable water of the State, without a permit issued by the Department. The placement of such fill materials in the Lake by the Respondent constitutes a violation of Section 608.5 of Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR), as well as Section 15-0505 of the Environmental Conservation Law (ECL).
  3. In determining the appropriate penalty and corrective action to be taken for the committed violation, I have taken into account the circumstances of this case as established in the hearing record. The record establishes that the placement of concrete and other fill materials in the Lake, at the direction of the Respondent's son, Miron Diachuk, occurred with the knowledge and consent of the Respondent. As constructed, the seawall and backfill run approximately 140 feet along the shore of the Respondent's property and extend into the Lake approximately 20 feet. Moreover, said construction extends into the Lake approximately 10 feet beyond the lakeward fronts of the seawalls of the Respondent's contiguous neighbors to the north and south, the Mangel and Romano properties, respectively. This additional length of the Respondent's seawall, beyond those of her neighbors, impedes winter ice movement along the shoreline in the area of the site.
  4. The environmental consequences of this violation of ECL 15-0505 and 6 NYCRR 608.5 are that the productive habitat of some 2800 square feet of the lakebed of Lake Ontario has been eliminated from use by various aquatic species, but particularly as a spawning and feeding area for numerous fish which inhabit the Lake. However, I find that since the contiguous neighbors' seawalls also extend into the waters of the Lake, the complete removal of the seawall and backfill constructed by the Respondent would exacerbate erosion along the shoreline, to the detriment of the environmental habitat at the site in general.
  5. In view of all the foregoing, I concur with ALJ Wissler's penalty recommendation, as well as his recommendation that the Respondent be required to remove that part of the seawall and backfill construction which extends beyond the contiguous neighbors' properties, being approximately 1400 square feet, provided that Department Staff determines, after review of a permit application submitted by the Respondent for the same, that such modification can be made in a manner which fully comports with the requirements of 6 NYCRR 608.7 and 608.8.

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

  1. The ALJ's Findings of Fact, Rulings on Motions, Conclusions of Law and Recommendations in the Hearing Report (copy attached) and the record, are adopted in full.
  2. Respondent Anna Romer violated ECL Article 15 and, particularly, implementing regulation 6 NYCRR 608.5.
  3. Respondent Anna Romer is assessed a civil penalty in the amount of Ten Thousand Dollars ($10,000), One Thousand Dollars ($1,000) of which is to be due and paid in full to the Department within 30 days of service of this Order. The remaining civil penalty amount of Nine Thousand Dollars ($9,000) shall be suspended and the obligation to pay said amount shall cease if the Respondent fully complies with the provisions of Paragraph IV of this Order within the time frames provided therein. Payment of this penalty shall be by cashiers check, certified check or Money Order drawn to the order of "NYSDEC" and delivered to: Regional Director, New York State Department of Environmental Conservation Region 6, 317 Washington Street, Watertown, New York 13601.
  4. Respondent Anna Romer is directed to cease the violation and to reduce the size of the seawall and backfill construction on the eastern border of her property located at 14772 Snowshoe Road, Town of Henderson, Jefferson County, New York, such that its lakeward edge is in line with that of the seawalls of the contiguous neighbors' properties, and to restore the affected portion of the lake bottom of Lake Ontario to its condition prior to the violations, insofar as that is possible, within 75 days of the service of this Order, and under the Department's supervision. In this regard, Respondent is directed to submit to the Department Staff, within 30 days of the service of this Order, a permit application to authorize the reduction of the seawall and backfill construction as indicated heretofore, which plan or permit application is to provide that:
    1. All concrete and other fill materials are to be removed until the natural lake bottom is clear of all residue from such portion of the seawall construction as is removed. All removed fill materials are to be disposed of legally.
    2. The pre-existing condition of the lake bottom is to be re-established.
    3. Removal of the fill material and restoration are to be completed in accordance with a schedule to be determined by the Department Staff.
    4. The Department's Region 6 Staff is to be notified in writing prior to commencement of the seawall removal and remediation work, and Respondent is to perform the work specified herein as directed by the Department Staff.
  5. All communications between Respondent and the Department concerning this Order, including the payment of the penalty, shall be made to the Regional Director, New York State Department of Environmental Conservation Region 6, 317 Washington Street, Watertown, New York 13601.
  6. The provisions, terms and conditions of this Order shall bind the Respondent, her agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department of Environmental Conservation
____________/s/____________
By: Erin M. Crotty, Commissioner

Albany, New York
Date: July 2, 2003

To: Mark G. Gebo, Esq.
Hrabchak & Gebo, P.C.
216 Washington Street, Suite 300
Watertown, New York 13601

Randall C. Young, Esq.
Assistant Regional Attorney
Region 6, Division of Legal Affairs
New York State Department of Environmental Conservation
317 Washington Street
Watertown, New York 13601

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 15 of
the Environmental Conservation Law (ECL) of the State
of New York and Part 608 of Title 6 of the Official
Compilation of Codes Rules and Regulations of the State
of New York (6 NYCRR) by

REPORT OF THE ADMINISTRATIVE
LAW JUDGE

Anna Romer,

DEC Case No.
R6-20000620-44
Respondent.

SUMMARY

In this Administrative Enforcement Hearing Report, Administrative Law Judge (ALJ) Richard R. Wissler finds that the Respondent, Anna Romer, has violated Environmental Conservation Law (ECL) Article 15 (Water Resources), Title 5 (Protection of Water) by having placed fill (by constructing a concrete seawall with earthen backfill) below the mean high water level of Lake Ontario, which is a navigable water of the State, without a permit issued by the Department in contravention of ECL Article 15 and implementing regulation Section 608.5 of Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR). ALJ Wissler recommends that the Respondent be required to remove that part of the seawall and backfill construction which extends beyond the seawalls of the contiguous neighbors' properties, being approximately 1400 square feet, provided that Department Staff determines, after review of a permit application submitted by the Respondent for the same, that such modification can be made in a manner which fully comports with the requirements of 6 NYCRR 608.7 and 608.8. ALJ Wissler further recommends that Respondent be assessed a civil penalty in the amount of $10,000, of which $1,000 shall be due and payable within 30 days of the service of the Commissioner's Order in this matter, with the balance of the penalty of $9,000 suspended and the obligation to pay such penalty balance obviated if that part of the seawall and backfill construction which extends beyond the seawalls of the contiguous neighbors' properties shall be completely removed and the lakebed in the violation area be satisfactorily restored.

PROCEDURAL BACKGROUND

Notice of Hearing and Complaint

The instant enforcement action was commenced by the service of a Notice of Hearing and Compliant, dated June 20, 2001, containing one cause of action alleging a violation of 6 NYCRR 608.5, the excavation or placement of fill in navigable waters of the State without a permit as therein required. The Compliant alleges that the Respondent is the owner of a site fronting on Lake Ontario, and located on Snowshoe Road, in the Town of Henderson, Jefferson County, New York. The Complaint further alleges that sometime during or after October 1996, the Respondent caused the construction or reconstruction of a break-wall, also referred to as a seawall, some feet out from, and parallel to, the natural shoreline into the waters of Lake Ontario, a navigable water of the State, to a point extending lakeward of the mean high water level of the Lake at the site. Fill was then placed in the area behind the seawall. The construction of the seawall and the placement of fill behind it required a permit issued by the Department pursuant to the authority of 6 NYCRR 608.5, but no permit was ever obtained by the Respondent.

Verified Answer and Affirmative Defenses

The Respondent filed a Verified Answer to the Complaint, dated July 12, 2001. In substance, the Respondent admitted ownership of the subject property, the Department's authority to maintain the instant action, and the requirements of 6 NYCRR 608.5. Generally, the Respondent denied she had violated the aforementioned regulatory provision, and denied that the seawall extends waterward beyond the mean high water level of the Lake or that the section of the Lake in question is a navigable water of the State. As to the Department's allegation that she had caused the construction or reconstruction of a seawall at the site in October 1996, the Respondent admitted that sometime during September and October 1996 construction was done on a seawall at the site, in the nature of repairs to the seawall. This seawall, the Respondent would argue at the hearing, was preexisting at the site at the time her son, Miron Diachuk, acquired the property in 1985, and was rebuilt in 1995, before being repaired in 1996. In her Verified Answer to the Complaint, the Respondent admitted that no written permit was issued by the Department for the work completed in 1996, but argued that she had received verbal authorization from the Department and that Department representatives were present at the site during and after the repairs in 1996 without raising any objection to the work and, in fact, they had offered suggestions as to how the work should proceed. Moreover, the Respondent claimed that authorization from the U.S. Army Corps of Engineers (ACOE) for the repairs in 1996 had been obtained. During the hearing, the Respondent would also argue that she had an ACOE permit for the construction of the seawall and placement of backfill accomplished in 1995 and that, similarly, DEC representatives were present at the site during that 1995 construction and made no objection to the undertaking.

In her Verified Answer, the Respondent also asserted two affirmative defenses: estoppel and laches. The Respondent argued that, in view of the Department's alleged conduct before, during and after the 1996 repair of the seawall, it should be estopped from making the instant complaint. The Respondent further contended that the Department should be estopped herein since this matter involves only the repair of a preexisting seawall and, in addition, the Department has authorized other similar structures in the same area that encroach even more into the waters of Lake Ontario than does the Respondent's seawall. As to laches, the Respondent asserted that the instant action should be estopped due to the delay in the commencement of this action, in light of the Department's prior knowledge of the repairs in 1996.

Department's Motions to Amend Complaint and Dismiss Affirmative Defenses and the Respondent's Replies Thereto

The Department moved to amend the Complaint to correct various citations to the ECL. This motion was granted by the ALJ, there being no objection by the Respondent. With respect to the affirmative defenses of estoppel and laches, the Department argued that they should be dismissed since, under the circumstances of this case, estoppel is not available to preclude the Department from enforcing its regulations and laches cannot be asserted against the State acting in its governmental capacity to enforce a public right or protect a public interest.

Citing various legal authority, the Respondent asserted that while rare, estoppel can be invoked against a governmental agency when it can be shown that affirmative acts on the part of the agency have induced reliance by a party. The facts in this case would show that such reliance on the part of the Respondent was justified, she argued, rendering the instant action unwarranted. Respondent maintained that a hearing on the motion should be convened to resolve the matter.

Request by the Department for Admissions of Fact

Pursuant to 6 NYCRR 622.7, the Department requested the Respondent to admit certain facts as follows: Request (1), that Lake Ontario in the Town of Henderson is seasonally navigated by vessels capable of carrying one or more persons; Request (2), that the Respondent has owned the subject property since 1989 to the present; and Request (3), that the site is contiguous to Henderson Bay of Lake Ontario.

The Respondent admitted the facts of Request (2). With respect to Request (1), the Respondent admitted that portions of Lake Ontario are navigable, but that the area at issue, comprising portions of Snowshoe Bay, White's Bay and Henderson Harbor, is not navigable near the shoreline, but is navigable some distance from the shoreline. As to Request (3), the Respondent admitted that the site is located at a point of land forming the juncture between Snowshoe Bay and White's Bay, which are themselves adjacent to Henderson Bay.

Adjudicatory Hearing of May 7, 2002

The adjudicatory hearing to consider the alleged violation of 6 NYCRR 608.5 was convened before ALJ Wissler, of the Department's Office of Hearings and Mediation Services, on May 7, 2002, in the Department's Region 6 Headquarters, 317 Washington Street, Watertown, New York, commencing at 9:50 A.M. and concluding at 4:45 P.M. The Department Staff was represented by Randall C. Young, Esq., Acting Regional Attorney, for Region 6, and the Respondent was represented by Mark G. Gebo, Esq., of the law firm of Hrabchak & Gebo, P.C., 216 Washington Street, Watertown, New York.

Before the hearing began, the ALJ heard oral argument with respect to the Department's motion to dismiss the affirmative defenses raised by the Respondent. The ALJ ruled that inasmuch as the factual issues to be determined in order to resolve the motion were the same factual issues required to adjudicate the ultimate issue as to whether or not a violation of 6 NYCRR 608.5 had been proven, a decision on the motion would be reserved until the close of the adjudicatory hearing. The hearing then went forward. Between the morning and afternoon sessions of the hearing, a site visit was conducted, attended by all parties.

Department Staff called the following witnesses: Michael C. Romano, owner of the contiguous property to the south of the Respondent's property; Brian D. Fenlon, Regional Permit Administrator for Region 6; Lawrence D. Gunn, Environmental Analyst I, in the Region 6 Division of Environmental Permits; and Leonard Ollivett, Biologist II, in the Region 6 Bureau of Habitat.

The Respondent called as witnesses Anna Romer, Respondent in the instant action and owner of the site, and Miron Diachuk, the Respondent's son who resides at the site.

In all, 22 Exhibits were received in evidence.

Both the Department Staff and the Respondents submitted post-hearing closing briefs which were received on July 1, 2002. The Department Staff submitted a reply brief which was received on July 16, 2002, following which the record of the hearing was closed.

FINDINGS OF FACT

  1. The Respondent, Anna Romer, is the owner of certain real property (the site) located at 14772 Snowshoe Point Road, in the Town of Henderson, Jefferson County, New York. Records indicate that the site is also known as 793 Snowshoe Road, Henderson R.D. #1, Henderson, New York. The Respondent acquired the property by transfer of deed in 1988 from her son, Miron Diachuk, who himself had acquired the property in 1985. The Respondent resides in Utica, New York, while Mr. Diachuk actually resides at the site, and has done so on a year-round basis since 1988 or 1989.
  2. The property comprising the site is oriented along an east to west axis. To the west it fronts on Snowshoe Road for approximately 88 feet. The northern and southern boundaries of the property run easterly from Snowshoe Road, widening somewhat, for more than 300 feet until intersecting the shore of Lake Ontario. The property's eastern frontage on Lake Ontario runs approximately 140 feet. The property is improved by a two-story residence and other accessory structures.
  3. The property slopes gradually toward the Lake until terminating at a stone retaining wall, approximately 10 feet high, running the length of the property along the Lake.
  4. Lakeward of the stone retaining wall, a seawall about 4 feet in height has been constructed out into the waters of Lake Ontario. From the retaining wall, the seawall forms a rectangular area of about 20 feet by 140 feet. The northern and southern ends of the seawall extend from near the ends of the existing northern and southern property lines approximately 20 feet into the Lake where they intersect with the lakeward front of the seawall running 140 feet between them. The rectangular area enclosed by the seawall has been backfilled with earth. The seawall, thus constructed, is inundated at the mean high water level of Lake Ontario and, in fact, the base of the lakeward front of the seawall is inundated at all times of the year.
  5. A map of the Respondent's property, dated May 24, 1985, which was derived from a survey made of the Respondent's property sometime prior thereto and whose accuracy was certified to by the licensed surveyor who produced the map, does not depict any seawall existing at the time the map was drawn in 1985.
  6. Henderson Bay lies at the eastern end of Lake Ontario, approximately 15 miles southwest of Watertown, New York, and encompasses certain smaller bodies of water within its boundaries. At its southernmost point, its shoreline narrows to form Henderson Harbor, portions of which have been designated as special anchorage areas pursuant to 33 C.F.R. Section 110.87. Approximately one mile west of the mouth of Henderson Harbor, the shoreline of Henderson Bay curves to the southwest for about one-half mile before running northeast, forming the small cove known as Whites Bay. From the mouth of Whites Bay, the shoreline of Henderson Bay runs northeast approximately one and a quarter miles until turning somewhat abruptly to the northwest where it forms the southwestern shore of Snowshoe Bay. The Respondent's property is located at this turning point of the shoreline between Whites Bay and Snowshoe Bay. The western boundary of Henderson Bay extends generally in a northeasterly direction from the Respondent's site for approximately one mile and embraces both Hoveys Island and Association Island.
  7. Water depths of Lake Ontario in Henderson Bay are, for the most part, in excess of 30 feet. The bottom drops off rapidly lakeward of the shore of the Bay, and, indeed, depths of 20 feet or more are encountered within 50 yards or less of the shore of the site.
  8. The property of William Mangel adjoins the Respondent's property immediately to the north. Various photographs admitted into evidence at the hearing show a seawall and dock structure on the lakefront of this property and the presence of a small powerboat moored thereto. The seawall and filled area at the Respondent's site extend out into the Lake approximately 10 feet beyond the lakeward end of the Mangel seawall and dock.
  9. The property of Michael C. Romano adjoins the Respondent's property immediately to the south. Various photographs admitted into evidence at the hearing show a seawall and dock structure on the lakefront of the Romano property and the presence of a small powerboat moored thereto. The seawall and filled area at the Respondent's site extend out into the Lake approximately 10 feet beyond the lakeward end of the Romano seawall and dock.
  10. Water depths at the seawall on the Respondent's property are sufficient to allow the mooring of small watercraft.
  11. Henderson Bay is a navigable waterway of the State and is utilized for recreational boating. There are several marinas located here as well as restaurants that cater to boaters. A marina is currently under construction on Association Island. There are also a number of fishing guide services and charter services located on the Bay. From at least 1996 to 1998, areas of the Bay were overseen by a harbor master, although the record does not indicate whether the geographic limits of his or her jurisdiction included the waters immediately adjacent to the Respondent's property.
  12. On January 29, 1987, the Department received DEC Permit Application No. 60-87-0049 from Miron Diachuk. This application was jointly filed with the U.S. Army Corps of Engineers (ACOE) under ACOE Application No. 87-411-3. The project description, at Item 11 of the application, states that the purpose of the project is to "install 260 feet of rip rap and bulkhead to prevent further erosion by high water and ice." Drawings annexed to the application indicate that rip rap was proposed to be placed along the 140 foot length of the property's lake frontage and that toward the northern end of the property line, another line of rip rap, perpendicular to the shoreline, 60 feet long and 4 feet wide was proposed to run out into Lake Ontario. At the end of this lakeward run of rip rap and perpendicular to it, an additional line of rip rap 60 feet long and 4 feet wide would run in a southerly direction parallel to the shoreline, thus creating an "L." The drawings annexed to the application do not indicate the presence of any pre-existing seawall.
  13. By letter dated February 10, 1987, Lawrence D. Gunn, an Environmental Analyst with the Department's Region 6 Division of Regulatory Affairs, advised Mr. Diachuk that the aforementioned permit application could not be acted upon by the Department until more detailed diagrams of the proposal were submitted. With respect to that part of Mr. Diachuk's proposal which sought to place rip rap along the 140 foot length of the existing bank, Mr. Gunn observed, in his letter, that this proposal appears reasonable as long as the material is kept within 5' to 6' of the bank." However, as to the proposed rip rap "L", the February 10, 1987, letter states, "It is unclear as to what constitutes the remainder of your proposal. It appears you wish to construct some type of a breakwater or dock into the lake. DEC does not issue permits for the construction of solid rock breakwaters or solid docks to provide private dockage. These large structures occupy large amounts of valuable bottom habitat and interfere with the natural shoreline currents. The near shore shallow areas are extremely important since that is where nutrient exchange and photosynthesis takes place. The basic food chain, which supports all aquatic life, has its beginning in shallow water."
  14. Inasmuch as the detailed diagrams requested by the Department in its February 10, 1987, letter were not provided by the applicant, by letter dated March 4, 1988, Mr. Gunn, on behalf of the Department, advised Mr. Diachuk that his application, DEC Permit Application No. 60-87-0049, was considered withdrawn and that the Department's file in the matter would be closed. In this letter, Mr. Gunn advised Mr. Diachuk that "to perform work without a permit would be a violation of the Environmental Conservation Law."
  15. Sometime during 1995 the 20 foot by 140 foot seawall and fill described in Finding of Fact 4, above, was constructed at the site. No permit for this construction was ever, at any time, issued by the Department.
  16. Sometime during the winter of 1995-1996, the aforementioned seawall was damaged by ice.
  17. On or about September 16, 1996, the Department received DEC Permit Application No. 6-2236-00175/00001, signed by the Respondent, Anna Romer, and her son, Miron Diachuk, as her agent. The application was jointly filed with the ACOE, bearing their permit application number 87-411-3. At Item 12, the application states that the proposed permit was requested to "repair ice damage" and the project description at Item 13 states, merely, "reface concrete seawall." A drawing attached to the application shows the seawall and fill described in Finding of Fact 4, above.
  18. By letter dated September 12, 1996, the ACOE advised Mr. Diachuk that the proposed seawall repairs were authorized by the federal Nationwide Permit, provided that the Nationwide Permit Conditions found in 33 CFR 330 were observed. A copy of these conditions was attached to the letter delineating not only the nationwide general permit conditions, but also those special conditions applicable to Nationwide Permits issued in the State of New York.
  19. Special Condition 2, applicable to Nationwide Permits issued in New York State and attached to the ACOE's letter of September 12, 1996, states "Nationwide Permits do not obviate the need to obtain other Federal, State, or local permits, approvals, or authorizations required by law."
  20. By letter dated October 9, 1996, the Department advised Mr. Diachuk that it would not be issuing a permit at that time for the proposed seawall repairs. Based upon a site inspection conducted by the Department, this permit denial letter states, "The present wall extends well waterward of the normal shoreline and is in a very deteriorated and unstable condition. It is questionable that a concrete cap poured along the face of the wall will be a stable and long lasting method of repairing this structure. It is recommended that the entire wall or the more unstable sections be removed and a new wall be poured closer to the normal shoreline."
  21. However, inasmuch as a search by the Department Staff revealed that no permit had ever been issued for the construction of the original seawall, the aforementioned October 9, 1996, permit denial letter demands, "Please provide the year the existing wall was constructed and any permit number that authorized the work." Neither any permit nor the information as to the year of original construction of the seawall was ever supplied by the Respondent pursuant to this Department request.
  22. Sometime during or after October 1996, the seawall was reconstructed. Additional backfill material consisting primarily of earth and gravel was also placed behind the seawall at that time.
  23. Miron Diachuk testified at the hearing that at no time did he have a written permit issued by the Department authorizing the construction or reconstruction of the seawall and placement of backfill at the site. In her Verified Answer to the Department Staff's Complaint, signed by her on July 12, 2001, the Respondent admits that there is no written permit issued by the Department authorizing the aforementioned construction or placement of backfill.
  24. The seawall and backfill area, as constructed, has eliminated some 2800 square feet of productive aquatic bottom area which once provided habitat for various invertebrate and fish species. Indigenous invertebrate organisms, including crayfish and insect larvae, serve as food sources for fish in such areas. Fish species also use such areas for spawning. Indigenous fish species include smallmouth bass, rock bass, sunfish and yellow perch.
  25. Based upon ACOE 1985 International Great Lakes Datum, the mean high water elevation of Lake Ontario is 247.30 feet above mean sea level. The nearest ACOE reference station to the site for the collection of daily water levels of the Lake is Oswego, New York. Site visits were conducted by the Department on October 27, 2000, and July 26, 2001. Water levels of the Lake at Oswego for these days were 244.6 feet and 245.8 feet above sea level, respectively. Accordingly, at Oswego, the level of the Lake on October 27, 2000, was 2.7 feet below its established mean high water level, and on July 26, 2001, 1.5 feet below its established mean high water level. These same variances below the Lake's mean high water level were observed at the site on October 27, 2000, and July 26, 2001. Nevertheless, photographs of the seawall taken on October 27, 2000, show the waters of Lake Ontario actually inundating the base of the seawall. Moreover, the high water level of the Lake is evident from the discoloration of the concrete of the seawall at the site. This discoloration takes the form a band of lighter coloration running along the entire seawall, and was approximately 2.7 feet in width, measured from the Lake's surface to the most lakeward top edge of the band, on October 27, 2000, as shown on photographs of the seawall taken by Department Staff that day. In addition, these photographs depict green filamentous algae growing on and attached to the seawall at a point below the top of the aforementioned band of discoloration.
  26. Winter ice movement along the shoreline in the area of the site is impeded by the extra length the Respondent's seawall and backfill structure extends beyond the seawall and dock structures of her contiguous neighbors. This extra length causes a build-up of ice in front of the Romano property.

APPLICABLE STATUTORY PROVISIONS

Section 15-0505 of the Environmental Conservation Law, entitled "Protection of navigable waters; excavation or fill; permit" states, in pertinent part, in Subdivision 1:

"No person . . . shall excavate or place fill below the mean high water level in any of the navigable waters of the state . . . without a permit issued pursuant to subdivision 3 of this section. For the purposes of this section, fill shall include, but shall not be limited to, earth, clay, silt, sand, gravel, stone, rock, shale, concrete (whole or fragmentary), ashes, cinders slag, metal, or any similar material whether or not enclosed or contained by (1) crib work or wood, timber, logs, concrete or metal, (2) bulkheads and cofferdams of timber sheeting, bracing and piling or steel sheet piling or steel H piling, separated or in combination."

The implementing regulations of this statute are to be found in Part 608 of 6 NYCRR. Section 608.5 thereof, entitled "Excavation or placement of fill in navigable waters," specifically provides as follows:

"Permit required. No person . . . may . . . place fill, either directly or indirectly, in any of the navigable waters of the State . . . that are inundated at mean high water level . . . without a permit issued pursuant to this Part."

The term "fill" is defined at 6 NYCRR 608.1(g) and

"means any solid or semi-solid, organic or inorganic material including, but not limited to, earth, clay, silt, sand, gravel, stone, rock, shale, concrete, ashes, cinder, slag, metal, stumps, solid waste as defined in Part 360 of this Title, or any other similar material, whether or not enclosed or contained by a structure."

The phrase, "navigable waters of the State," is defined at 6 NYCRR 608.1(l) and, as relevant to this discussion,

"means all lakes . . . in the State that are navigable in fact or upon which vessels with a capacity of one or more persons can be operated notwithstanding interruptions to navigation by artificial structures, shallows, rapids or other obstructions, or by seasonal variations in capacity to support navigation."

The phrase, "mean high water," is defined at 6 NYCRR 608.1(i) and means

"the approximate average . . . high water level for a given body of water at a given location, that distinguishes between predominantly aquatic and

predominantly terrestrial habitat as determined, in order of use, by the following:

  1. available hydrologic data, calculations, and other relevant information concerning water levels (e.g., discharge, storage, tidal, and other recurrent water elevation data); (mean high water elevations are established, using this method, for certain waterbodies as presented in Section 608.11 of this Part);
  2. vegetative characteristics (e.g., location, presence, absence or destruction of terrestrial or aquatic vegetation);
  3. physical characteristics (e.g., clear natural line impressed on a bank, scouring, shelving, or the presence of sediments, litter or debris); and
  4. other appropriate means that consider the characteristics of the surrounding area.

Pursuant to 6 NYCRR 608.11, the mean high water elevation of Lake Ontario, expressed in feet above mean sea level, is 247.30. This level is a determination made by the U.S. Army Corps of Engineers and is based upon 1985 Great Lakes Datum.

Finally, Subdivision 1 of ECL Sec. 71-1127 provides for civil liability for a violation of 6 NYCRR 608.5 and states:

"Any person who violates any of the provisions of, or who fails to perform any duty imposed by article 15 except section 15-1713, or who violates or who fails to comply with any rule, regulation, determination or order of the department heretofore or hereafter promulgated pursuant to article 15 except section 15-1713, or any condition of a permit issued pursuant to article 15 of this chapter, . . . shall be liable for a civil penalty of not more than five hundred dollars for such violation and an additional civil penalty of not more than one hundred dollars for each day during which such violation continues, and, in addition thereto, such person may be enjoined from continuing such violation as otherwise provided in article 15 except section 15-1713."

DISCUSSION

Proof of the Violation of 6 NYCRR 608.5 Alleged in the Complaint

The facts adduced at the adjudicatory hearing show that the elements of 6 NYCRR 608.5 have been satisfied and that a violation of this section by the Respondent has been demonstrated by a preponderance of the evidence, the standard of proof required by 6 NYCRR 622.11(c).

The facts show that the Respondent, Anna Romer, through the actions of her son, Miron Diachuk, acting as her agent, placed fill, directly in Lake Ontario, a navigable water of the State, and below the mean high water level of the Lake, through the construction of the seawall and the placement of earth and gravel and other fill behind it, without a permit issued by the Department.

The area of Lake Ontario where the site is located is a navigable water of the State. As the factual record indicates, Henderson Bay is used extensively for recreational boating, with marinas, restaurants and other commercial establishments present in support of this activity. (Transcript of Adjudicatory Hearing at page 126, hereinafter abbreviated "T." and page number.) Many private residences on the Bay have docking and mooring facilities and, indeed, the neighbors contiguous to the Romer site have docks and moor pleasure boats at their properties. (Department Staff Exhibits 6 and 10.) Moreover, Miron Diachuk conceded that watercraft could be moored at the Respondent's property, although he maintained that this could be done for only about a month and a half during the year. (T., p. 220.) These facts demonstrate that the waters of Lake Ontario where the site is located are "navigable waters of the State" as defined by 6 NYCRR 608.1(l) and cited above. Even assuming, arguendo, that the water depth of Lake Ontario varies throughout the year enough to preclude navigation of a vessel at certain times of the year at the site, this fact does not mean that the waters at the site are not "navigable waters of the State" within the meaning of 6 NYCRR Part 608. As the definition at Section 608.1(l) makes clear, "navigable waters of the State" means "all lakes . . . in the State that are navigable in fact or upon which vessels with a capacity of one or more persons can be operated notwithstanding interruptions to navigation ... by seasonal variations in capacity to support navigation." (Emphasis supplied.) Moreover, it should be noted that the Respondent's property lies at the point of the confluence of Snowshoe Bay and Whites Bay, and this latter body of water has, in particular, been previously determined to be a "navigable water of the State." See, DEC v.Kinsella, Order of the Commissioner dated June 2, 1992; 1992 WL 177432*9.

The facts adduced at the hearing also show that the constructed seawall and fill were placed lakeward of the eastern lakefront border of the Respondent's site and at a point below the mean high water level of Lake Ontario such that the construction would be inundated at the mean high water level of the Lake. The record shows that the facts, when viewed in light of the criteria articulated in 6 NYCRR 608.1(i) which are to be considered in determining the mean high water level at a site, demonstrate that the structure extends out into Lake Ontario to a point at least 2.7 feet below the mean high water level of the Lake. This, quite obviously, shows that the seawall is inundated by the waters of the Lake Ontario at mean high water to at least a depth of 2.7 feet.

Criteria 1, 2 and 3 of 6 NYCRR 608.1(i) are particularly relevant to the discussion of this matter. Criterion 1, which directs that, in the first instance, "available hydrologic data, calculations, and other relevant information concerning water levels" be considered in determining mean high water, points out that 6 NYCRR 608.11 lists certain bodies of water and their mean high water levels which have been established by the Department in application of the criterion. Accordingly, pursuant to Section 608.11, the mean high water level of Lake Ontario is officially recognized to be 247.30 feet above mean sea level. Water levels of Lake Ontario are monitored daily by the International St. Lawrence River Board of Control (ISLRBC) utilizing measurements taken at certain reference stations around the Lake, the nearest to the Romer site being Oswego, New York. (Department Staff Exhibit 8.) Department Staff visited the site on October 27, 2000, and July 26, 2001, on both occasions noting that the structure extended into the waters of the Lake. (Generally, T., pp. 105-123, but especially pp. 107 and 122.) Department Staff Exhibit 8 contains ISLRBC daily water level data for the months of October 2000 and July 2001. This data indicates that at Oswego, New York, the water level of Lake Ontario on these dates was 74.54 and 74.92 meters above mean sea level, respectively. When converted to feet, this indicates that the level of the Lake on October 27, 2000, at Oswego, was 244.6 feet, or 2.7 feet below the Lake's established mean high water level of 247.3 feet, and on July 26,2001, was 245.8 feet, or 1.5 feet below the Lake's mean high water level. (Department Staff Exhibit 9.)

Applying Criteria 2 and 3 of 6 NYCRR 608.1(i), which direct a consideration of vegetative and physical characteristics, respectively, it is apparent that the seawall extends out into the waters of Lake Ontario to a point below the mean high water level of the Lake. Both green filamentous algae and discoloration of the seawall are to be observed in the photographs taken by Department Staff on October, 27, 2000, conditions which confirm inundation of the seawall by the waters of Lake Ontario. (Department Staff Exhibit 7.) The discoloration comprises a band of lighter coloration of the concrete of the seawall extending upwards from the level of the Lake and traversing the entire perimeter of the seawall. The uppermost limit or top of this band indicates the mean high water level of Lake Ontario at the site. Moreover, the photographs taken on October 27, 2000, show, by use of a yardstick, that on that day, the level of the Lake was approximately 2.7 feet below the top of the band of discoloration on the seawall, consistent with the levels observed at the ISLRBC reference station at Oswego, New York, the same day.

The Respondent concedes that the construction and subsequent reconstruction of the seawall was, in fact, undertaken and that no written permit was ever issued by the Department authorizing either the construction or reconstruction. (T., p. 195; Paragraph 5 of Respondent's Answer, verified by Anna Romer on July 12, 2001.)

From the foregoing, I find that the factual elements of the offense have been satisfied by a preponderance of the credible evidence and, accordingly, that a violation of 6 NYCRR 608.5 by the Respondent has been proven.

Arguments Advanced by the Respondent

Verbal Authorization from DEC and Placement of the Seawall

The Respondent argues that the construction and subsequent repair of the seawall, while not undertaken pursuant to any written permit issued by the Department, were undertaken pursuant to ACOE permits and that the work was done with the knowledge and apparent consent, even verbal consent, of the DEC. Moreover, the Respondent argues that the seawall was, in fact, placed along the shoreline of Lake Ontario, comporting with the Department's wishes as expressed in its letter of October 9, 1996.

The Respondent's son, Miron Diachuk, asserted that from his historical research, he had determined that there was once a bulkhead with finger slips at the site, but that they had deteriorated over the years, such that only "a shadow of bulkhead" existed at the time he acquired the property in 1985. (T., pp. 155-157.) While Diachuk insisted that he had submitted other permit applications to the ACOE prior to the application of 1987, he was unable to produce either the applications or any ACOE permits issued pursuant to those applications. (T., pp. 159-164.) He asserted, however, that he had received an ACOE permit in 1985 or 1986 to reconstruct the dilapidated bulkhead that was preexisting at the site. (T., pp. 164-167.) The actual construction of the seawall was not undertaken until sometime in 1995, however, because Mr. Diachuk was going through a divorce in the intervening period. (T., p. 167.) Mr. Diachuk also claimed that prior to the time he commenced construction of the seawall in 1995, he was told by a Mr. Nebstead at the ACOE that he did not need to check with any agency before commencement of such construction. (T., pp. 167-168.)

Mr. Diachuk claimed that at or around the time of the construction of the seawall in 1995, representatives from the DEC were on site. (T., pp. 180-187.) The first of these occasions, he claims, was during the preparation of the forms to pour the concrete for the seawall. According to Diachuk, three individuals were present, perhaps including Lawrence Gunn. (T., p. 181.) One of the three DEC individuals spoke to Mr. Diachuk. At the hearing, Diachuk testified as follows (T., pp. 184-185):

Q. Okay. Who spoke first, the D.E.C. representative or you?

A. He did.

Q. He did. What did he say?

A. He showed me some identification, he asked me if I had a permit.

Q. What did you tell him?

A. I said yes.

Q. Was there any further conversation than that?

A. No, he left.

The second occasion Diachuk claims a representative from DEC was present at the site was the day the concrete for the seawall was actually poured. At the hearing Diachuk testified as follows (T., pp. 185-186):

Q. Were there any other occasions following that time in 1995, that there was any D.E.C. representative on the site?

A. Yes, another man came.

Q. When was that? When was the next occasion?

A. That was the morning that the forms were up, we were going to pour that morning.

Q. This was still in 1995?

A. Yes.

Q. Okay. And how did you know that that gentleman was associated with the D.E.C.?

A. He had a hat, a D.E.C. hat on.

Q. Did he identify himself?

A. Yes, he told me he was with the D.E.C.

Q. Did you get his name?

A. No, I didn't. I don't remember what his name was, he told me what his name was. It was a brief conversation.

Q. What did you say to him?

A. I asked him if there was anything I could do, anything I could show, and he said, you know, the forms looked good, and then he left.

Approximately two weeks after the seawall was poured, Diachuk claims that a single representative from the Department again visited the site. At the hearing, he testified as follows (T., p.187.):

Q. And do you know - how did you know the person was a representative of the Department?

A. He told me. He was standing off to the left side of the house, he was on the main left side of the premises. I looked out of the window, he was standing there, I asked him, you know, what he was doing, it was private property. He told me he was with the D.E.C., he had inspected that thing, then he left.

After the seawall was constructed, it sustained damage during the winter of 1995-96. (T., p. 168.) Thereafter, the Respondent filed a joint application with the ACOE and the DEC for a permit to repair the damage. (Department Staff Exhibit 2.) While the DEC denied this application, by letter dated October 9, 1996, and requested further information as to the existence of any Department permit authorizing the construction of the seawall in the first instance, the ACOE issued a letter advising the Respondent that the repairs were authorized under the Nationwide Permit, pursuant to 33 CFR 330. (Department Staff Exhibit 3; Respondent Exhibit D.)

At the hearing, Diachuk insisted that he had "verbal" approval from the DEC to effect the seawall repairs, although he admitted he did not have an actual permit from the DEC authorizing the work and, indeed, never received such a permit. (T., pp. 193-195.) Diachuk claimed that the repairs to the seawall were made on or about September 6, 1996, and that subsequent thereto, he received the DEC's denial letter dated October 9, 1996. (T., pp. 193 and 199-200; Department Staff's Exhibit 3.)

Diachuk asserted that after he received the Department's letter of October 9, 1996, he called the DEC and spoke with Lawrence Gunn. (T., p. 200.) He said he wanted clarification of the Department's position in the letter. The letter suggested that the seawall be "moved closer to the normal shoreline." (Department Staff Exhibit 3.) Diachuk claimed that he told Gunn that the seawall, as constructed, was, in fact, located at the normal shoreline. (T., pp. 200-201.) To substantiate this claim, the Respondent submitted in evidence a photocopy of part of a survey of the Romano property which is contiguous to the site and immediately to the south. (Respondent's Exhibit G.) This survey, dated May 3, 1999, shows the lakefront of both the Romano's and the Respondent's properties. The shoreline of Lake Ontario is drawn on the survey and labeled, "SHORELINE 4-27-1999." The lakeward face of the seawall at the Respondent's property is within a few feet lakeward of this drawn shoreline. Approximately ten feet landward of the drawn shoreline, is depicted the deeded easternmost boundary of the Romano property, a broken line labeled, "DEED HIGH WATER LINE."

At the outset, the record as developed at the hearing does not support Diachuk's contention that a deteriorated seawall existed at the site at the time he acquired the property in 1985. Such a preexisting structure does not appear on the survey annexed to 1987 permit application. (Department Staff Exhibit 4.) Nor is an existing bulkhead or seawall depicted on the drawing of the proposed construction Diachuk, himself, drew and submitted with that application. Indeed, on that drawing, the bulkheads of the contiguous owners' properties are shown and labeled, "existing bulkhead." No such label is indicated at the Respondent's property, however. Item Number 11 of the 1987 application, entitled "Project Description," indicates that the purpose of the project is to "install 260' of rip rap & bulkhead to prevent further erosion by high water & ice." Nowhere in this application is any mention made of reconstruction of, or repairs to, an existing bulkhead or seawall. Moreover, Lawrence Gunn of the DEC visited the site in 1987, during his review of the permit application, and observed that the rip rap and bulkhead proposed in the 1987 application did not, in fact, exist at the time of his inspection, nor did the 20 foot by 140 foot seawall and backfill. (T., pp. 57-58 and 87-88.) Hence, it cannot be reasonably inferred from the credible evidence that the construction undertaken in 1995 is anything but new construction. Indeed, the construction undertaken in 1995, consisting of a 20 foot by 140 foot seawall which was completely backfilled, is not even remotely the same project as the rip rap and 60 foot "L" proposed in the 1987 application.

In any event, whether for reconstruction or new construction in 1995, or repairs in 1996, a permit from the Department was required, and the record clearly shows that the Respondent understood this. In the first instance, the applications submitted in 1987 and 1996 were each on agency supplied multi-part forms entitled, "JOINT APPLICATION FOR PERMIT," with copies to be distributed to both the DEC and the ACOE. (Department Staff Exhibits 2 and 4.) The 1987 application was signed by Miron Diachuk and the 1996 application by the Respondent, Anna Romer, and Miron Diachuk, as her agent. In addition, after submitting the 1987 application, which was received by the Department on January 29, 1987, and included the proposal for the new seawall, Miron Diachuk was advised by the DEC, in a letter dated February 10, 1987, that it could not act on his application without further information. Moreover, this letter explicitly stated, "It appears you wish to construct some type of a breakwater or dock into the lake. DEC does not issue permits for the construction of solid rock breakwaters or solid docks to provide private dockage." (Respondent's Exhibit A.) When the additional information was not received by the DEC, Miron Diachuk was advised by letter dated March 4, 1988, that the permit application was considered withdrawn. In its conclusion, this letter explicitly states, "To perform work without a permit would be a violation of the Environmental Conservation Law." (Department Staff Exhibit 5.) These letters clearly put Miron Diachuk, the Respondent's son and agent, on notice that a permit would certainly be required from the DEC before any construction such as that contemplated could be undertaken at the property. And this notice was given by the DEC in March of 1988, some seven years before the Respondent undertook the initial construction of the seawall in 1995.

With regard to the 1996 application, the record shows that the Respondent was on notice and understood that she needed a DEC permit for the repair of the seawall. Not only did the DEC's letter of October 9, 1996, demand that "the year the existing wall was constructed and any permit number that authorized the work" be provided, but it also clearly stated that "A permit for the refacing of the wall cannot be issued at this time." (Department Staff Exhibit 3.) In addition, annexed to and made part of the authorization under the Nationwide Permit issued by the ACOE on September 12, 1996, were the general and special conditions of the Nationwide Permit. (Respondent's Exhibit D.) These conditions include provisions applicable to the State of New York and specifically state that "Nationwide Permits do not obviate the need to obtain other Federal, State, or local permits, approvals, or authorizations required by law." Moreover, the conditions contain a section entitled "Information on Nationwide Permit Verification." This section concludes by stating that "Possession of this permit does not obviate you of the need to contact all appropriate state and/or local governmental officials to insure that the project complies with their requirements." Accordingly, from the foregoing, it is clear that the Respondent was on notice that she required a permit from the DEC prior to undertaking the construction or repair of the seawall and that any authorization she may have received from the ACOE did not satisfy the concomitant need to obtain a DEC permit.

While the Respondent, through her son and agent, Miron Diachuk, concedes that she never had a written permit from DEC to undertake either the construction of the seawall in 1995 or the repairs thereto in 1996, she argues, however, that she had verbal authority from the DEC on both occasions to complete the work and that such verbal authority was apparently confirmed by the conduct of the Department Staff who allegedly visited the site at or about the time of the construction or repair of the seawall and made no objection to the work being undertaken. These contentions are not supported by the record.

While Gunn indicates that he spoke with Diachuk by telephone or in person in 1987, and perhaps spoke with both Diachuk and the Respondent in 1996, it is clear from the record that such conversations took place as part of the Department's review process for each of the applications submitted. (T., pp. 50, 77 and 80.) Moreover, site visits by the Department during the application review process are not unusual and cannot be reasonably construed as an authorization, contrary to law, to proceed with the proposed construction or repair without a permit. Except for Diachuk's bare assertions in the matter, the record is completely devoid of any credible evidence to even suggest that Gunn or any other employee of the DEC conveyed any verbal or implied authority to the Respondent to undertake either the construction or repair of the seawall without an actual permit issued by the Department. Indeed, Diachuk's assertions are at sharp variance with the documents submitted into the record in this matter. For example, Gunn's letters to Diachuk of February 10, 1987; March 4, 1988; and October 9, 1996, all speak, in essence, to the need for Diachuk or the Respondent to obtain an actual permit from the Department before undertaking any construction or repair of the seawall. (Respondent's Exhibit A, Department Staff Exhibits 5 and 3, respectively.) And the letter of March 4, 1988, explicitly states: "To perform work without a permit would be a violation of the Environmental Conservation Law."

Accordingly, the record confirms the Respondent's construction and repair of the seawall and the placement of backfill in violation of 6 NYCRR 608.5.

Estoppel

The Respondent argues that the Department should be estopped from maintaining the instant action. Such a defense is warranted, the Respondent maintains, inasmuch as the construction and subsequent reconstruction of the seawall and placement of the backfill was undertaken in reliance on certain government actions and reasonable inferences drawn therefrom. In support of this argument, and particularly as to the 1996 reconstruction, she asserts the following: (1) The ACOE issued a permit; (2) Since the filing of the joint application led to the issuance of a permit from one agency, the ACOE, the Respondent could reasonably assume that she also had permission to proceed from DEC; (3) In reliance on the ACOE permit and the foregoing assumption, the Respondent incurred considerable expense in the construction of the seawall and the placement of fill; and (4) The construction was not undertaken surreptitiously and, in fact, DEC personnel were at the site before, during and after the construction of the seawall and placement of the backfill and could have objected to the work, but chose not to do so.

In assessing the first three assumptions of the estoppel argument put forth by the Respondent, it is necessary to reiterate the factual history presented by this record as to any permits that may have been issued by the ACOE. In the first instance, the record shows that a joint permit was applied for in 1987 to place rip rap along the existing shoreline at the site and to construct an "L" shaped seawall 60 feet on each side out into the waters of Lake Ontario, an apparent solid dock structure. (Department Staff, Exhibit 4.) No ACOE permit for such a structure, if it was, indeed, issued by the ACOE, was introduced into evidence at the adjudicatory hearing. Moreover, the construction which was actually undertaken in 1995 resulted in the placement of a seawall and backfill into the waters of Lake Ontario covering an area of 20 feet by 140 feet. As previously noted, this construction was, obviously, not the same project proposed in the 1987 joint application. No application to either the ACOE or DEC for this construction, first undertaken in 1995, was introduced into evidence at the adjudicatory hearing. The only ACOE permit introduced into evidence at the adjudicatory hearing was the 1996 ACOE authorization under the Nationwide Permit for the repair of the 1995 construction. These were proposed repairs to a seawall that was, in the first instance, illegally constructed. Whatever rights the Respondent may claim she has under an estoppel theory do not flow from this latter 1996 ACOE authorization. There being no credible evidence of any other ACOE permit ever being issued in this matter, the first, second and third of the assumptions upon which the Respondent bases her estoppel theory are unsupported by the record and any claimed reliance thereon to her detriment is of no moment.

Moreover, as is clear from the record, as well as applicable statutory and regulatory authority, any permit issued by the ACOE would not, under any circumstances, obviate the need to obtain permits from the DEC to undertake either the construction in 1995 or the subsequent repairs in 1996. Indeed, the necessity of obtaining appropriate state permits is explicitly articulated in the special conditions which are a part of the Respondent's ACOE authorization under the Nationwide Permit issued by the ACOE on September 12, 1996.

Finally, the record of credible evidence in this matter simply does not support the Respondent's last assumption in advancing her estoppel argument that the construction or repairs were undertaken openly and with the DEC's alleged knowledge and acquiescence. Again, as previously noted, any conversations DEC personnel may have had, or site visits they may have made, were merely a part of the Department's review of the permit applications submitted in 1987 and 1996. Nothing in such conduct can be even remotely construed to convey the authority to engage in any construction or repair in absolute contravention of the very laws and regulations of which this record clearly shows the Respondent and her son had actual knowledge. This knowledge is amply demonstrated by the Respondent's submission of permit applications in this matter to DEC as well as the ACOE and the written correspondence she and her son received from the DEC explicitly declining to issue for a permit for any of the work proposed and unequivocally stating in its denial of the first proposal of 1987 that, "To perform work without a permit would be a violation of the Environmental Conservation Law." (Department Staff Exhibit 5.)

As the New York courts have consistently held, the doctrine of estoppel has a very limited and narrow applicability to governmental agencies. The doctrine cannot be invoked against a municipal agency to prevent it from discharging its statutory duties. Parkview Associates v. City of New York, 71 N.Y.2d 274, 525 N.Y.S.2d 176, 519 N.E.2d 1372 (1988). Moreover, the doctrine cannot be relied upon to create a right where none exists. Grishman v. City of New York, 583 N.Y.S.2d 425 (N.Y.A.D. 1 Dept., 1992). Accordingly, estoppel cannot be invoked to prevent the Department from discharging its statutory duty to review permit applications and to issue or refrain from the issuance of permits, as appropriate to the particular circumstances. In addition, estoppel cannot be invoked against the Department to authorize construction or repairs without the very permit otherwise mandated by the regulations. In the rare instances where estoppel has been invoked, there has been a showing that the governmental agency has acted or comported "itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice." Bender v. New York City Health & Hospitals Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561 (1976). This rule of law has no applicability in this case. In the first instance, the record in this matter is completely devoid of any believable evidence that the Department's agents acted in any wrongful or negligent way whatsoever. Secondly, even if Diachuk's assertions that he had verbal authorization to proceed without an actual permit from the Department are given credence, it cannot be said that either he or the Respondent was entitled to rely on such statements. The reliance suggested in Bender, supra., means reasonable reliance, reasonable under the circumstances of the particular case. Diachuk's and the Respondent's conduct in applying for the permits in 1987 and 1996, the various written correspondence from the Department and Diachuk's own testimony at the hearing show that he, and thus the Respondent, knew that an actual document called a permit was required from the DEC for both the original construction and the subsequent repair of the seawall and the placement of the fill. Thus, any reliance by the Respondent on alleged Department comments or actions to the contrary is simply not reasonable under the circumstances of this case. Accordingly, the doctrine of estoppel has no applicability in this matter.

Laches

As with estoppel, likewise, the doctrine of laches does not apply. The law in New York is well settled that "laches may not be interposed as a defense against the State when acting in a governmental capacity to enforce a public right or protect a public interest." Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169,178, 495 N.Y.S.2d 927,486 N.E.2d 785 (1985). Clearly, acting in such "governmental capacity" includes the Department's authority to enforce of the provisions of 6 NYCRR 608.5. Moreover, before the doctrine of laches can be invoked, a party must show that it has suffered substantial prejudice by reason of the delay in the commencement of an administrative proceeding. Id, 66 N.Y.2d at p. 180. The party must show that the delay has "significantly and irreparably" handicapped its ability to defend in the administrative enforcement proceeding. Id. The Respondent argues that she has suffered hardship in this case by having to defend the matter and because she has expended funds in the construction and repair of the seawall. Moreover, she and her son have come to see the seawall and fill as an adjunct to the property which enhances their enjoyment of the site. (Respondent's Summation, Point 4.) These facts, as articulated by the Respondent, do not show that she was "significantly and irreparably" handicapped in her ability to defend at the adjudicatory hearing convened in this matter. Accordingly, the doctrine of laches does not provide a basis for dismissal of this administrative proceeding.

RULINGS ON DEPARTMENT'S MOTIONS TO DISMISS

As previously noted in the procedural history of the instant matter, the Department moved to dismiss the affirmative defenses of estoppel and laches raised by the Respondent arguing that these doctrines had no applicability in the instant proceeding. The Respondent argued that these defenses did apply and that the facts which would be adduced at the hearing would demonstrate such applicability. In light of the foregoing Findings of Fact and the discussion herein, I find that the doctrines of estoppel and laches do not apply. Accordingly, the Department's motion to dismiss is granted.

DEPARTMENT STAFF'S RECOMMENDATION AS TO THE REMOVAL OF THE SEAWALL AND BACKFILL

In the Complaint filed in this matter, Department Staff sought, inter alia, an Order from the Commissioner directing the "Respondent to remove the breakwall and all fill material in the pad behind it to a point above the mean high water level," effectively requiring the Respondent to remove all of the seawall and backfill material which encroach upon the waters of Lake Ontario, to any degree. However, in its Closing Brief, Department Staff revised the relief it sought and asked that the Respondent be directed to remove only that part of the seawall and backfill which lies lakeward of the seawalls of the Respondent's contiguous neighbors. Since the Respondent's seawall extends approximately 10 feet beyond the equivalent structures of her contiguous neighbors, this would mean the removal of approximately 1400 square feet of the 2800 square feet presently occupied by the Respondent's seawall and backfill. (Generally, Department Staff's Closing Brief, pp. 13-16.) The Respondent's closing brief does not address the change sought by Department Staff.

Department Staff is confident that requiring the Respondent to remove only that portion of the seawall and backfill which extends lakeward beyond her neighbors' properties is appropriate to the circumstances, since it provides for the protection of the Respondent's property from erosion, and will not compromise the Department's regulatory and enforcement responsibility under 6 NYCRR Part 608. Indeed, Department Staff believes that removal of only a portion of the structure, as built, after due consideration of the factors enumerated in the permit application review provisions of 6 NYCRR 608.7, comports with the standards for permit issuance or modification articulated in 6 NYCRR 608.8. Section 608.8 provides that a permit will be issued only upon "a determination that a proposal is in the public interest, in that:

  1. the proposal is reasonable and necessary;
  2. the proposal will not endanger the health, safety or welfare of the people of the State of New York; and
  3. the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including, soil forests, water, fish, shellfish, crustaceans and aquatic and land-related environment."

Applying these standards, the Department Staff argues that the 2800 square foot structure built by the Respondent is not reasonable or necessary for either erosion control or access to the water. A structure that encroaches into the Lake only as far as the neighbors' seawalls is sufficient to address these concerns. (Id., p. 15.) The structure, as built, displaces 2800 square feet of habitat for fish spawning and feeding. This results in unnecessary damage to the natural resources of the State, as the structure, in Department Staff's view, displaces twice as much Lake bottom than is required. (Id., pp. 15-16.) Finally, the structure, as built, is not in the "public interest" because it obstructs the littoral flow of the Lake. By extending out into the Lake beyond the seawalls of the neighbors' properties, the movement of ice and other debris along the shore is impeded to the detriment of the contiguous neighbors.

Discussion

Construction without a permit is an offense never to be taken lightly. Given the environmental review occasioned by the application process, as well as the inspection and reporting requirements often imposed as part of the acceptance of a permit, the failure to obtain a permit for those activities where a permit is required effectively precludes the Department from fulfilling its most fundamental mandate, to conserve, improve and protect the natural resources and environment of the State for the health, safety and welfare of its people. As Commissioner Jorling observed in the Department's Civil Penalty Policy, promulgated June 20, 1999:

Registration, filing or reporting requirements are critical to the Department's understanding of the universe of regulated entities. Undertaking any action which requires a DEC permit, without first obtaining the permit, is always a serious matter, not a mere "technical" or "paper work" violation, even if the activity is otherwise in compliance. Failure to first obtain required permits deprives DEC of the opportunity to satisfy its obligation of review and control of regulated activities.

Since a violation of 6 NYCRR 608.5 has been demonstrated by the proof adduced at the adjudicatory hearing, it is apparent that the Department is entitled to the relief requested in the Complaint, namely, the complete removal of the illegally constructed seawall and backfill and the complete restoration of the Lake bottom at the site. However, in the exercise of its discretion, Department Staff has modified its position and now seeks to have the illegally built structure reduced in size such that the lakeward front of the Respondent's seawall is moved landward to the point where it is even with the lakeward fronts of the seawalls of her contiguous neighbors. This modified request by Department Staff is not unreasonable in light of the unique facts and circumstances of this case. In the first instance, the record shows that there is a legitimate concern for erosion along the shoreline at the site. As indicated in Finding of Fact 12, above, the stated purpose for the joint permit application of 1987 was to install "rip rap and bulkhead to prevent further erosion by high water and ice." (Department Staff Exhibit 4.) In its letter of February 10, 1987, referred to at Finding of Fact 13, above, Department Staff stated this proposal "appears reasonable as long as the material is kept within 5' to 6' of the bank." (Respondent's Exhibit A.) Moreover, at the adjudicatory hearing, Lawrence Gunn testified that although it should preferably be placed as close as possible to the high water line, rip rap would "allow protection of the shoreline" and could be "backfilled for stability." (T., p. 86.) In addition, the record demonstrates that winter ice flows at the site are impeded by the extra length the Respondent's seawall and backfill juts out into Lake Ontario beyond the seawalls of her contiguous neighbors, particularly causing a build-up of ice in front of the Romano property. (See, Finding of Fact 26, above.) A photograph depicting this phenomenon was introduced by Department Staff into evidence at the adjudicatory hearing and testified to by Michael C. Romano, the Respondent's neighbor immediately to the south. (Department Staff Exhibit 1.)

As indicated above, Department Staff's request to allow the Respondent to reduce the size of the seawall and backfill to the point where it protrudes into Lake Ontario only as far as the seawalls of her contiguous neighbors is reasonable in light of the unique circumstances of this case. Reducing the seawall will address the problem of erosion at the site and eliminate the Respondent's seawall as a cause of ice build-up at the neighbors' properties during the winter months. But this should only be allowed after the Respondent has submitted a permit application for the same and the Department has had the opportunity to review it giving due consideration to the factors enumerated in 6 NYCRR 608.7. This review will require that the environmental impacts of the project be considered pursuant to Section 608.7(b)(1), including the effects on aquatic life and habitat. While the reduction in size of the Respondent's seawall and backfill will result in the restoration of some 1400 square feet of lake bottom, an equivalent amount of lake bottom once available to fish and other organisms for food and habitat will also be lost. Pursuant to 6 NYCRR 608.8, and in the context of the new permit application, the Department Staff will have to determine that this loss is not unreasonable, or unnecessary, or can be ameliorated, before any permit can be issued authorizing reduction of the size of the seawall and backfill.

DEPARTMENT STAFF'S RECOMMENDATION AS TO THE APPROPRIATE PENALTY TO BE ASSESSED

As noted earlier, Subdivision 1 of ECL Sec. 71-1127 provides for civil liability for a violation of 6 NYCRR 608.5 and states:

"Any person who violates any of the provisions of, or who fails to perform any duty imposed by article 15 except section 15-1713, or who violates or who fails to comply with any rule, regulation, determination or order of the department heretofore or hereafter promulgated pursuant to article 15 except section 15-1713, or any condition of a permit issued pursuant to article 15 of this chapter, . . . shall be liable for a civil penalty of not more than five hundred dollars for such violation and an additional civil penalty of not more than one hundred dollars for each day during which such violation continues, and, in addition thereto, such person may be enjoined from continuing such violation as otherwise provided in article 15 except section 15-1713."

Assuming the violation alleged herein occurred during October 1996, the strict application of this statute would mandate a civil penalty well in excess of $150,000. However, under the circumstances of this case, Department Staff is recommending a civil penalty of $10,000. Of this penalty amount, $1,000 would be paid within 30 days of the service of a Commissioner's Order herein, and the remaining $9,000 would be suspended if the Respondent reconfigures the seawall to bring it in line with those of her neighbors. While considerably less than the statutory maximum, the penalty amount recommended by Department Staff is not unreasonable, nor does it shock the conscience.

Section IV of the Department's Civil Penalty Policy of June 20, 1990, states that "the penalty should equal the gravity component, plus the benefit component, plus or minus any adjustments." With respect to the gravity component, in this case, the violation proven is of a nature that undermines the permitting scheme and regulatory oversight contemplated by 6 NYCRR Part 608. In addition, the seawall and backfill will, even if reduced in size, cause the permanent loss of approximately 1400 square feet of lake bottom once used for spawning and habitat by fish and other organisms. Accordingly, a civil penalty of $10,000 based upon the gravity component is not inappropriate. The benefit component in this matter is, on these facts, de minimis. If the Respondent removes all of the seawall and backfill, any economic benefit she may have derived from the illegal construction will be lost. Moreover, if she removes only the front portion of the seawall, her property will have accreted in size by approximately 1400 square feet. Since her property is somewhat more than 30,000 square feet in area, this would mean an increase in land mass of about 4 percent. Finally, suspending $9000 of the penalty, as Department Staff recommends, will encourage the Respondent to reduce the size of the seawall.

CONCLUSIONS

  1. The Respondent, Anna Romer, is the owner of certain real property on the shores of Lake Ontario, located on Snowshoe Road in the Town of Henderson, Jefferson County, New York, being the subject site of the instant proceeding.
  2. From the lakefront shore of said site, the Respondent, acting alone and through her son, Miron Diachuk, acting as her agent, caused the construction in 1995 and the repair in 1996 of a concrete seawall and the placement of earth behind said seawall, out into the waters of Lake Ontario.
  3. The concrete seawall and the earth placed behind it are fill, within the meaning of 6 NYCRR 608.1(g).
  4. Lake Ontario is a navigable water of the State of New York within the meaning of 6 NYCRR 608.1(l) and is, in fact, navigable along the shoreline immediately contiguous to the Respondent's site.
  5. The aforementioned concrete seawall and earth have been placed in an area that is inundated at the mean high water level of Lake Ontario.
  6. The construction of the concrete seawall and placement of earth in 1995 and the subsequent repair of the same in 1996, on each occasion, required a permit issued by the Department.
  7. At no time has the Department issued a permit authorizing either the original construction or the subsequent repair of the aforementioned concrete seawall and earthen fill.
  8. The concrete seawall and earthen backfill area, as constructed, has eliminated some 2800 square feet of productive aquatic bottom area which once provided habitat for various invertebrate and fish species. Indigenous invertebrate organisms, including crayfish and insect larvae, in such areas, serve as food sources for fish. Fish species use such areas for spawning as well as feeding. Indigenous fish species include smallmouth bass, rock bass, sunfish and yellow perch.
  9. The Respondent's seawall and backfill extends approximately 10 feet into the waters of Lake Ontario beyond the seawalls of her contiguous neighbors and impedes winter ice flows at the site.
  10. The Respondent's actions, as described above, constitute violations of Section 15-0505 of the Environmental Conservation Law and its implementing regulation, 6 NYCRR 608.5.

RECOMMENDATION

In consideration of the above Findings of Fact, Discussion, Rulings on Motions and Conclusions, I recommend the Commissioner issue an Order finding that the Respondent, Anna Romer, has violated ECL Section 15-0505 and 6 NYCRR 608.5, and directing the Respondent to cease the violation and to reduce the size of the seawall and backfill construction on the eastern border of her property located at 14772 Snowshoe Road, Town of Henderson, Jefferson County, New York, such that its lakeward edge is in line with that of the contiguous neighbors' properties, and to restore the affected portion of the lake bottom of Lake Ontario to its condition prior to the violations, insofar as that is possible, within 75 days of the service of this Order, and under the Department's supervision. In this regard, Respondent should be directed to submit to the Department Staff, within 30 days of the service of this Order, a permit application to authorize the reduction of the seawall and backfill construction as indicated heretofore, which plan or permit application is to provide that:

  1. All concrete and other fill materials are to be removed until the natural lake bottom is clear of all residue from such portion of the seawall construction as is removed. All removed fill materials are to be disposed of legally.
  2. The pre-existing condition of the lake bottom is to be re-established.
  3. Removal of the fill material and restoration are to be completed in accordance with a schedule to be determined by the Department Staff.
  4. The Department's Region 6 Staff is to be notified in writing prior to commencement of the seawall removal and remediation work, and Respondent is to perform the work specified herein as directed by the Department Staff.

The provisions, terms and conditions of this Order shall bind the Respondent, her agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

I further recommend that the monetary penalty proposed by the Department Staff be assessed the Respondent for the aforementioned violation of ECL Article 15 and, particularly, 6 NYCRR 608.5, and that the Commissioner's Order assess the Respondent a civil penalty in the amount of Ten Thousand Dollars ($10,000), One Thousand Dollars ($1,000) of which is to be due and paid in full to the Department within 30 days of service of this Order. The remaining civil penalty amount of Nine Thousand Dollars ($9,000) shall be suspended and the obligation to pay said amount shall cease if the Respondent fully complies with the provisions of the recommended Order directing reduction of the seawall and backfill as herein provided, within the time frames provided therein.

Finally, I recommend that the provisions, terms and conditions of any such Order shall bind the Respondent, her agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

____________/s/____________
Richard R. Wissler
Administrative Law Judge

Albany, New York
February 26, 2003

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