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Siniscalchi, Anthony - Decision, October 8, 2003

Decision, October 8, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter

-of-

the application for a tidal wetlands permit,
use and protection of waters permit, and water
quality certification pursuant to the
Environmental Conservation Law (ECL) Articles
15 and 25 and Title 6 of the Official Compilation
of Codes, Rules and Regulations of the State of
New York (6 NYCRR) Parts 608 and 661 by

ANTHONY SINISCALCHI

PERMIT APPLICATION No. 1-2820-01304/00003

DECISION

October 8, 2003

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Molly T. McBride, in the matter of the application of Anthony Siniscalchi for tidal wetlands and protection of waters permits and a water quality certification, is hereby adopted as my Decision in this matter.

The application identifies the project as constructing 80 linear feet of new bulkhead 30" seaward of an existing bulkhead. For a tidal wetlands permit, an applicant must demonstrate that the proposed project is compatible with the policy of the Tidal Wetlands Act to preserve and protect tidal wetlands and to prevent their despoliation and destruction such that the project will not have an undue adverse impact on the present or potential values of the affected tidal wetlands or adjoining or nearby wetlands, while taking into account the social and economic benefits of the project. 6 NYCRR 661.9(b)(1)(i). Among the other standards that an applicant must satisfy are that the proposed project is reasonable and necessary, taking into account reasonable alternatives, and that the project complies with the applicable use guidelines. See 6 NYCRR 661.9(b)(1)(iii) & (v).

The hearing record demonstrates that the application has not satisfied the standards for issuance of a tidal wetlands permit.

The evidence shows that the construction of the proposed bulkhead would have impacts that are unduly adverse to the environment. A considerable area of tidal wetland designated as littoral zone would be filled, resulting in the direct loss of all present and potential value of that affected wetland. See Tr. at 14-15, 215-216. As set forth in the hearing, the values of the littoral zone include nursing and feeding habitat for a variety of marine life, as well as helping to cleanse the ecosystem by allowing the settling out of silts and organic material. Tr. at 214.

Department staff proposed to the applicant a number of reasonable alternatives to minimize adverse impacts, which were not taken into account. Tr. at 212, 217. Furthermore, the proposed filling of the littoral zone is a "presumptively incompatible use". 6 NYCRR 661.5(b)(30). The applicant failed to meet its burden of overcoming that presumption and of demonstrating that its proposed activity was compatible with the area involved and with the preservation, protection and enhancement of the values of tidal wetlands.

Accordingly, the application is denied.

For the New York State Department of
Environmental Conservation

/s/
_________________________________
By: Erin M. Crotty, Commissioner

Albany, New York
October 8, 2003

STATE OF NEW YORK

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter

- of-

the application for a tidal wetlands permit,
use and protection of water permit, and water
quality certificate pursuant to the
Environmental Conservation Law (ECL) Articles
15 and 25 and Title 6 of the Official Compilation
of Codes, Rules and Regulations of the State of
New York (6 NYCRR) Parts 608 and 661 by

ANTHONY SINISCALCHI

PERMIT APPLICATION No. 1-2820-01304/00003

HEARING REPORT

- by-

/s/

__________________________________
Molly T. McBride
Administrative Law Judge

October 7, 2003

PROCEEDINGS

An application for permits from the New York State Department of Environmental Conservation (Department, DEC Staff) was made by Anthony Siniscalchi, 201 Coronado Street, Atlantic Beach, New York (Applicant), for the issuance of a tidal wetlands permit, protection of waters permit and water quality certification. The application identifies the project as constructing 80 linear feet of new bulkhead 30" seaward of an existing bulkhead, dredging up to -4 Average Low Water to recover 5 cubic yards of material for backfill in the area between the old and new bulkheads on a site owned by the Applicant. The property is located in Reynolds Channel.

The project requires a tidal wetlands permit pursuant to Environmental Conservation Law (ECL) Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), a protection of waters permit pursuant to ECL Article 15, Title 5 and 6 NYCRR Part 608 and a water quality certification pursuant to 6 NYCRR 608.9.

Pursuant to ECL Article 8 (State Environmental Quality Review Act, SEQRA) and 6 NYCRR Part 617, the Department Staff determined that the proposed project is a Type II action and consequently no further environmental review is required under SEQRA (i.e., environmental impact statement).

A Notice of Complete Application was published on May 1, 2002 in the Department's Environmental Notice Bulletin (ENB) and on May 3, 2002 in the Hempstead Beacon. A permit denial was issued by DEC Staff on February 19, 2003 and, by letter dated March 10, 2003, the Applicant requested a hearing on the denial. A Notice of Hearing was published in the ENB and Newsday on June 18, 2003.

A hearing was held on July 16, 2003 at the Village of Atlantic Beach Village Hall, 65 The Plaza, Atlantic Beach, NY 11509 before Administrative Law Judge (ALJ) Molly T. McBride. The Applicant was represented by Mahler, Harris and Engler, Stephen Mahler, Esq., of counsel. The Department was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region One, Stony Brook, New York. The legislative hearing was convened first. No persons came forward to speak on the project. At the conclusion of the legislative hearing, an issues conference was convened. No other persons, agencies or organizations participated in the issues conference as parties or sought party status. At the conclusion of the issues conference, the ALJ ruled that the issues for adjudication were the reasons stated by DEC Staff in the denial letter dated February 19, 2003.

At the conclusion of the issues conference, the adjudicatory hearing was commenced.

The following witnesses testified on behalf of the Applicant: Anthony Siniscalchi, Thomas Pollard, contractor for the Applicant, and Steven Cherson, building inspector for Atlantic Beach. The Department produced one witness, Karen Graulich, DEC Marine Habitat Protection Regional Manager.

The parties submitted post-hearing briefs on or about July 30, 2003, and the hearing record closed on August 9, 2003 upon receipt of the transcript of the July 16, 2003 proceedings.

POSITION OF THE PARTIES

Applicant

The Applicant contends that the requested bulkhead replacement is necessary to protect his property from erosion damage and that the alternate proposals offered by DEC Staff would result in significant damage to his property as it would require the excavation of his backyard, including his sprinkler system and all plantings.

Department

DEC Staff contends that the Applicant has not met the burden of demonstrating that the project, as requested, meets the standards for tidal wetlands issuance and that the alternatives offered to the Applicant allow the continued protection of the property while minimizing the damage to the wetlands.

ISSUES FOR ADJUDICATION

DEC Staff denied the permit on three grounds and at the conclusion of the issues conference I ruled that those reasons identified by DEC Staff were issues requiring adjudication:

  1. The project does not comply with Tidal Wetlands Land Use Regulations in 6 NYCRR 661.9(b)(1)(i) in that the project must not have an undue adverse impact on the present or potential value of any adjacent or nearby wetlands.
  2. The project is not reasonable and necessary and fails to take into account reasonable alternatives as defined in 6 NYCRR 661.9(b)(1)(iii).
  3. The use of fill in the littoral zone is defined as presumptively incompatible pursuant to 6 NYCRR 661.5 and, therefore, does not comply with the use guidelines.

APPLICABLE REGULATORY PROVISIONS

6 NYCRR 661.9(b)(1) states, in pertinent part: "The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity:

(i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity;

(ii) is compatible with the public health and welfare;

(iii) is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent;

. . .

(v) complies with the use guidelines contained in section 661.5 of this Part."

6 NYCRR 661.5(b)(29) lists the construction of a bulkhead as a generally compatible use in coastal shoals, bars and flats and littoral zone, for which a permit is required. Section 661.5(b)(30) lists filling in those areas as a presumptively incompatible use.

With regard to the standards for issuance of a protection of waters permit, 6 NYCRR 608.8 states: "The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that: (a) the proposal is reasonable and necessary; (b) the proposal will not endanger the health, safety or welfare of the people of the State of New York; and (c) 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."

With regard to the standards for issuance of a water quality certification, 6 NYCRR 608.9 states, in pertinent part: "Any applicant for a Federal license or permit to conduct any activity, including but not limited to the construction or operation of facilities that may result in any discharge into navigable waters ... must apply for and obtain a water quality certification from the department. The applicant must demonstrate compliance with ... (6) State statutes, regulations and criteria otherwise applicable to such activities."

FINDINGS OF FACT

  1. Anthony Siniscalchi, the Applicant, 201 Coronado Street, Atlantic Beach, New York applied for a tidal wetlands and protection of waters permit and water quality certification for replacement of a timber bulkhead on the Applicant's property.
  2. The bulkhead replacement requested would result in the placement of a new vinyl sheathing bulkhead 20-29" seaward of the existing bulkhead. The vinyl sheathing is corrugated with 9 inch corrugation.
  3. The existing bulkhead is no longer protecting the Applicant's property from erosion and the Applicant has been placing fill on the property to replace eroded portions of the land.
  4. The project, as proposed by Applicant, would result in the filling of more than 80 square feet of littoral zone.
  5. The existing bulkhead was installed in 1988.
  6. DEC Staff proposed the following alternatives to the Applicant's proposal: bulkhead reconstruction which is landward replacement, in-place replacement, removal of existing pilings to allow replacement with vinyl sheathing within 18" of the existing bulkhead, and replacement within 18" utilizing wood sheathing. The Applicant has rejected all alternatives.
  7. DEC Staff's proposals would be more costly to the Applicant than his proposal.
  8. The Applicant's contractor, Thomas Pollard had two main objections to the alternatives, cost to the Applicant and safety.

DISCUSSION

Mr. Pollard testified that in-place replacement or replacement within 18" would require the removal of wood pilings and the tie rods that secure them. The removal of the tie rods would entail bringing heavy equipment into the Applicant's yard and digging up the area landward of the bulkhead, including the lawn, sprinkler system and other plantings, to get to the tie rods. Pollard testified that because of this, he recommended construction beyond the 18". Also, Pollard testified that he would not remove the wood pilings that would allow replacement within 18" because he was afraid the timber bulkhead would collapse before he could secure it without the pilings. He testified that he would "not sleep at night" due to this fear. However, Mr. Pollard offered no explanation as to why he could not adequately secure the bulkhead during construction or explain how other bulkheads are replaced without collapse of the old bulkhead. This site had a replacement in 1988 and no reference was made as to how that project was accomplished without a collapse or that the bulkhead did collapse during construction.

Mr. Pollard also failed to note any examples of bulkhead collapse during replacement during his many years in the business. Mr. Pollard has owned his own bulkhead replacement/construction business for the past 14 years. During that time he has estimated many jobs in Reynolds Channel and also did some work in Reynolds Channel but nothing since 1998 or 1999. He noted that this area has heavy wave action because of its proximity to the ocean.

Mr. Pollard was questioned about other projects in Reynolds Channel near the Applicant's property that he observed. He observed several bulkhead replacements that in his opinion, after "eyeballing" the site, the bulkheads were replaced further than 18" from the bulkhead being replaced. However, when questioned a ANTHONY SINISCALCHIs to the source of this information he acknowledged it was from his observations after work was done at these sites and that he never took any measurements or saw the permits issued by the DEC. In fact, DEC Staff presented proof at the hearing that the bulkheads he identified as having exceeded 18" were all projects where permits were issued for replacement within 18". I therefore did not find Mr. Pollard's observations credible.

The Applicant testified at the hearing. He said that he rejected the DEC Staff's alternatives because of the additional cost involved. He did acknowledge that he was made aware of DEC policy not to allow the type of bulkhead replacement he was seeking before he submitted his application. However, he apparently did not consult another contractor for this project to see if the work could be done within DEC guidelines but at a lower cost than Mr. Pollard gave him.

The project calls for the filling in of the area between the existing bulkhead and the new bulkhead. This would result in more than 80 square feet of littoral zone being filled. The permit application also called for dredging and the dredged material was to be used for the fill. At the hearing the Applicant amended the application to remove the request to dredge and also changed the fill material to clean fill. However, this is still considered a "presumptively incompatible use" as defined at 6 NYCRR 661.5. Pursuant to section 661.9(b)(1)(v) the Applicant has the burden of proof to demonstrate that the activity is compatible with the preservation, protection and enhancement of the area to be filled. The Applicant made no such showing and offered no proof on this subject.

The Applicant's third witness was the building inspector for the Village of Atlantic Beach, Steven Cherson. This gentleman testified about nearby municipal projects and the bulkheads approved for the municipality. I do not find those projects analogous to this one and his testimony is not relevant to these proceedings. He made his own personal remarks on projects of other homeowners in the area but, like Mr. Pollard, he had no evidence to support any claims that others had replaced bulkheads past the 18" of an existing bulkhead.

DEC Staff presented Karen Graulich, Regional Manager for the tidal wetlands unit. Ms. Graulich testified about Department policy regarding bulkhead replacement. She stated that it has always been the policy of the Department to allow one replacement of a bulkhead within 18" of an existing bulkhead. Ms. Graulich provided some history on this policy. She stated that the 18" rule was developed by the Department in conjunction with contractors so as to allow for the protection of property without unnecessary damage to tidal wetlands. 6 NYCRR 661.5, Use Guidelines, categorized the in-kind and in-place replacement as a "Generally Compatible Use."

Ms. Graulich testified that in her opinion, the alternatives proposed by DEC Staff would allow for the protection of the Applicant's property without unnecessary damage to the wetlands.

Ms. Graulich also added that many bulkhead replacements have been done in Reynolds Channel and the bulkhead replacements were accomplished within the 18". She presented the permits issued to those neighbors of the Applicant that Mr. Pollard and Mr. Cherson discussed. Each of the permits issued allowed for the replacement of the existing bulkhead within 18". This refuted the testimony of Mr. Pollard and Mr. Cherson.

CONCLUSIONS OF LAW

  1. 6 NYCRR 661.9(b) identifies the standards for a tidal wetlands permit to be issued. In summary, the applicable parts require a showing that the permitted activity will not have an undue adverse impact on the present or potential value of the wetlands for marine food production, wildlife habitat and flood and hurricane and storm control, that it is reasonable and necessary and takes into account reasonable alternatives as defined at 6 NYCRR 661.9(b)(1)(iii) and that it complies with the use restrictions found at section 661.5.
  2. The project as applied for would result in the filling of wetlands which is a presumptively incompatible use. The Applicant has the burden of proof to demonstrate that the use is compatible, and the Applicant has not met that burden.
  3. The alternatives proposed by the Department would afford the same protection for the Applicant's property, and the Applicant has not taken those reasonable alternatives into account.
  4. The Applicant has not demonstrated that the standards for issuance of a tidal wetlands permit, protection of waters permit and water quality certification have been met.

RECOMMENDATION

I recommend that the application be denied without prejudice to apply for permit for a bulkhead replacement consistent with the alternatives proposed by DEC Staff in the permit denial letter.

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