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Seymour, Henry and Alice - Report, July 8, 1993

Report, July 8, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of Report Concerning
HENRY AND ALICE SEYMOUR Settlement Conference
Held Pursuant to for a Permit to Perform Certain
Bulkhead and Boat Ramp Work at
the Hudson River at Applicants' Property at Port Ewen, New York

6 NYCRR 621.8
Permit Application
No. 3-5122-73/1-0

INTRODUCTION

Pursuant to a Notice of Conference dated June 2, 1993 and served at that time upon:

Margaret Duke
Permit Administrator
DEC Region 3
21 South Putt Corners Road
New Paltz, NY 12561

Henry and Alice Seymour
P. O. Box 123
Kerhonkson, NY 12466

Vance Barr
NYS Department of State
Coastal Management
162 Washington Avenue
Albany, NY 12231-00001

John Connell
Army Corps of Engineers
Regulatory Board
19th Floor, 26 Federal Plaza
New York, NY 10278

A settlement conference was held on June 30, 1993 at the Region 3 Office of the Department of Environmental Conservation ("DEC"), New Paltz, New York.

Present at the conference were:

Alice Seymour Applicant
Henry Seymour Applicant
David Seymour Son of Applicants
Molly Gallagher NYSDEC/DRA
Mike Flaherty NYSDEC/Fisheries
Margaret Duke NYSDEC/DRA
Kathy Hudson NYSDEC/Legal
Craig DuBois NYSDEC/Habitat Protection
Vance A. Barr NYSDOS/Consistency, Albany
John Connell ACOE/Regulatory, NY District

PROCEEDINGS

On or about March 16, 1992 the applicants filed with the DEC Region 3 Office a Joint Application for Permit. Thereafter, the applicants furnished the DEC Staff and the Army Corps of Engineers with further information in support of the application. On or about August 4, 1992 the NYSDEC Regional Office issued a Notice of Complete Application. Both before and after issuing that notice the NYSDEC Regional Office notified the applicants that it intended to deny the application and the New York State Department of State, Coastal Management Program, advised the applicants by letters dated October 29, 1992 and January 11, 1993 that it objected to the application.

THE APPLICATION

The applicants propose to construct a solid concrete bulkhead and boat ramp at their property on the west bank of the Hudson River at Port Ewen, New York.

A diagram of the subject property, of the applicants' property adjoining it on the North and of the property of others adjoining it on the South is attached.

The proposed bulkhead at the subject property (Lot 223) would be in line with the bulkhead existing at applicants' other property (Lot 221) and in line with the bulkhead to the South (Osika property); and it would be 50 feet in length (including a 10 foot wide boat ramp) 8 feet in width at the north end, 10 to 12 feet in width at the south end, and 80 inches deep.

The object of the proposal is to replace the land lost to erosion in the area between the old decaying bulkhead and the proposed bulkhead, to prevent the River from washing ice and debris into the corner formed by the old bulkhead and Osika's property, and to allow access to the very steep property for emergency vehicles over the property of Osika who applicants say has granted such permission.

OBJECTIONS TO THE APPLICATION

The NYSDEC Regional Office Staff, the Army Corps of Engineers and the Coastal Management Program of the New York State Department of State are united in opposition to the application.

The DEC's Staff position is that to place fill, especially solid fill (here concrete) on the area 50 foot by about 10 foot on Lot 223 between the present decaying bulkhead and the Lot 221-Osika bulkhead line, would destroy the littoral environment in that area where many marine organisms and wildlife exist and depend upon the tidal action and other aspects of the ecological system present there.

The Engineers are in agreement with the DEC's Staff position and stated that the indispensable permit from their agency would be denied.

The State's Coastal Management Program, while also agreeing with the DEC Staff, objects further that filling the littoral zone is inconsistent with its policies and that its Policy No. 44 calls for the preservation and protection of tidal wetlands within New York's Coastal Zone, including the Hudson littoral zone.

SETTLEMENT OFFER

The DEC Staff put forth an alternative proposal with which the Engineers and the Coastal Management Program were in agreement, namely a similar new bulkhead at the more inland position of the present decaying bulkhead and these parties also agreed to allow up to 18 inches of rip-rap to be placed on the River side out from the bulkhead, claiming that this would aid in sustaining the bulkhead while allowing organisms to thrive in the spaces among the stones and serve other purposes favorable to the littoral environment. If the applicants would agree, the DEC would issue a permit as would the Engineers, and Coastal Management would consent to the issuance of these permits.

The applicants, however, were not agreeable to this proposal and they offered no alternative proposal of their own, indicating that the alternative offered would not serve their claimed needs or purposes, that they did not acknowledge the reality of the environmental apprehensions, and that their real estate title was such as to furnish them with all the authority needed to do what they proposed.

DISCUSSION

The applicants are distressed in that when they purchased the subject property in 1962 there was a bulkhead substantially in the same position as their proposed bulkhead would be but because of failure to maintain that bulkhead it decayed and as a result there was erosion of the land in the area between the present decaying bulkhead and the old bulkhead. The applicants also regret that, if the permit is not issued, they will still have the ice and debris collecting in the corner and there will be no method of ingress or egress for emergency vehicles or, indeed, for aged or infirm persons.

The parties in opposition urge that, regardless of the circumstances, the applicants' design of placing fill in the Hudson River either to recover eroded land or as a substitute for it is not permitted.

Concerning the bulkhead alignment aspect, the DEC Staff points out that no filling in the River was required to produce the bulkhead position at applicants' property to the North (Lot 221) and that the bulkhead position at Osika's property to the South is in violation of a DEC permit issued to Osika in 1985, as a result of which either or both the DEC and the Corps of Engineers may well demand that Osika remove the bulkhead.

The parties in opposition also claim that the bulkhead as proposed would nevertheless collect ice and debris at the boat ramp because of the churning action of the water created by the configuration there.

RECOMMENDATION

Settlement efforts having failed, assuming the applicants wish to go forward from here, I recommend that an adjudicatory hearing be convened to determine whether a permit should be issued.

The applicants, who were not represented by counsel at the conference, were fully advised as to future proceedings, including their right at all stages to retain counsel, experts and others to assist them.

This report is being sent to the Chief Permit Administrator this date as well as to the parties.

/s/
John H. Owen Administrative Law Judge

Dated: July 8, 1993
Albany, NY

Attachment

TO: Margaret Duke
Permit Administrator
Region 3, NYSDEC
21 South Putt Corners Road
New Paltz, New York 12561

Henry and Alice Seymour
P. O. Box 123
Kerhonkson, New York 12466

George Danskin
Chief Permit Administrator
NYSDEC
50 Wolf Road
Albany, New York 12233-1750

Vance Barr
NYS Department of State
Coastal Management
162 Washington Avenue
Albany, New York 12231-00001

John Connell
Army Corps of Engineers
Regulatory Board
26 Federal Plaza, 19th Fl.
New York, New York 10278

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