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Stein, Ellen - Decision, March 17, 2003

Decision, March 17, 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 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

ELLEN STEIN

Permit Application No. 1-4722-02789/00005

DECISION
March 17, 2003

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Richard R. Wissler in the matter of the application of Ellen Stein for construction of a private dock facility in the Hamlet of Setauket, Town of Brookhaven, Suffolk County, is hereby adopted as the Decision in this matter subject to my comments below.

ECL §25-0102 declares it to be the public policy of this state to preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social development of the state. ECL §25-0402 provides that any person proposing to conduct a regulated activity shall have the burden of demonstrating that the activity will be in accord with the policy and provisions of the act. Based upon the record before me, the applicant has failed to make such a showing.

The proposed project is located in a virtually untouched tidal mudflat, which is the sole tidal mudflat in the Port Jefferson Harbor complex that is open for fishing and shellfishing on a year-round basis. The importance of tidal mudflats is unquestioned and the record in this case is replete with the important role the tidal mudflats play in the subject area. For example, various varieties of submerged aquatic vegetation (SAV) and numerous species of aquatic fauna inhabit the area. The area also serves as a habitat for commercial and recreational invertebrates and fish, as well as a feeding site for migratory birds. Additionally, the record demonstrates the importance of the intertidal marsh at the site in the removal of silt from the water, the cleansing of the ecosystem, and the minimizing of the impacts of floods, hurricanes and storms.

It is also clear that the project, as proposed, will significantly impair the values of this important environmental habitat. Specifically, the proposed catwalk extension and accessories will negatively impact the values of the existing vegetated intertidal marsh by shading and impair the values of the mudflat by altering the sedimentation rate. Further, these critical habitats will also be impaired by any increased boating activity attendant to such a project, since the area of the bay where the project would be located is far too shallow to accommodate such activity. Thus, the proposed project will degrade and diminish the critical environmental benefits present at this location and will negatively impact the survival of important species which depend on the tidal wetlands to exist.

Based upon the foregoing it is clear that given the undue adverse impact on the present and potential value of the tidal wetland at the site and the significance of those wetlands for marine food production, wildlife habitat, flood and hurricane storm control, cleansing ecosystems, absorption of silt and organic material, recreation and open space appreciation, as well as the reasonable alternatives to the project that are available, the proposed project cannot meet the standards for issuance of a tidal wetlands permit (Environmental Conservation Law 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)) nor for a protection of waters permit nor a water quality certification (Environmental Conservation Law Article 15 and 6 NYCRR Part 608).

Accordingly, the application is denied.

For the New York State Department
of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner

Albany, New York
March 17, 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 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

ELLEN STEIN

Permit Application No. 1-4722-02789/00005

HEARING REPORT

- by -

/s/
Richard R. Wissler
Administrative Law Judge

PROCEEDINGS

An application for permits from the New York State Department of Environmental Conservation (the "Department" or "DEC") was made by Ellen Stein, 28 Conscience Circle, Setauket, New York 11733 (the "Applicant"), for the reconstruction and extension of an existing catwalk, as well as the addition of a float and boat lift at the end of the catwalk. The proposed project would be located at the Applicant's private residence at the aforementioned address. The site is in the Hamlet of Setauket, Town of Brookhaven, Suffolk County, and is on the eastern shore of Conscience Bay, a part of the Port Jefferson Harbor complex.

The project would require 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 Part 661), 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 Section 608.9.

By letter dated April 9, 2001, Department Staff advised the Applicant that her permit application was denied because the project as proposed did not meet the standards for permit issuance as articulated particularly in 6 NYCRR 661.9(b)(1)(i) and (iii). Department Staff asserted that the proposed structure would have an undue impact on the present and potential values of the tidal wetlands at this site. Moreover, according to Department Staff, the proposal is not reasonable and necessary taking into account reasonable alternatives such as the use of a mooring to anchor a boat or utilization of a local marina.

Pursuant to ECL Article 8 (State Environmental Quality Review Act) and 6 NYCRR Part 617, the Department Staff determined that the proposed project is a Type II action requiring no further review pursuant to those regulatory provisions.

The matter was referred to the Department's Office of Hearings and Mediation Services to schedule a hearing. A Notice of Hearing was published on August 8, 2001, in the Department's Environmental Notice Bulletin, and in The Three Village Herald on August 15, 2001.

The hearing began on September 11, 2001, at the Department's Region 1 Headquarters, Building 40, State University of New York at Stony Brook, New York, before Richard R. Wissler, Administrative Law Judge (ALJ). Due to the national events which transpired that day, upon opening the record, the matter was adjourned for all purposes to October 16, 2001. The date for the public to submit written comments with respect to the proposal was extended to October 16, 2001, as well. A visit to the project site was conducted on September 11, 2001, however, and attended, inter alia, by the Applicant and her attorney and her consultant, members of Department Staff, and the ALJ. The hearing continued, before ALJ Wissler, on the following dates: October 16, December 10 and 11, 2001, and January 17 and 18, 2002.

The Applicant was represented by David Lazer, Esq., of the law firm of Lazer, Aptheker, Feldman, Rosella & Yedid, P.C., Melville, New York. The Department Staff was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York.

The Notice required that petitions to intervene be filed by August 31, 2001. The ALJ received no petitions to intervene.

The ALJ convened the public legislative hearing at 9:30 AM on Tuesday, October 16, 2001, at the aforementioned Department's Region 1 Headquarters. Seven persons spoke at the hearing and some of them submitted written comments as well. Village of Old Field Trustee and Deputy Mayor Geraldine Morrison who lives on the Narrows, the inlet to Conscience Bay, expressed concerns over winter ice impacts to docks in Conscience Bay causing damage to these structures resulting in floating debris dangerous to navigation, the use of power boats on the Bay and their threat to the safety of kayakers and children, and her preference for seasonal floating docks such as the one she uses at her residence. Cynthia Barnes, representing New York State Assembly Member Steven Englebright, read a letter from the Assemblyman which expressed opposition to the proposed project based upon various environmental, public safety and aesthetic considerations. Douglas Casimir commented that Conscience Bay was environmentally sensitive, the proposed structure would be aesthetically unpleasant, and that a mooring buoy was a reasonable alternative to the project. Ruth Wintjen commented that, in her experience, a mooring buoy was adequate to moor a boat in Conscience Bay and that docks detract from the natural beauty of the area and are subject to deterioration. Mary Specht, representing the Bayview Beach Association, located contiguous to and north of the Applicant's site and who testified for Department Staff at the adjudicatory hearing, spoke about the shallow water depths at the site, the hazard to navigation the structure would pose to canoeists, kayakers and water skiers and the negative aesthetic impact the proposed structure would have. Ms. Specht also submitted written comments from others, as well as photographs of the site. Grace Vanderhoort, representing the Strongs Neck Civic Association, expressed opposition to the proposed project pointing out that the shoreline of this section of Conscience Bay is unspoiled by docks, that the Bay is recognized as a significant fish and wildlife habitat, and that many other people on the Bay utilize a mooring buoy. Ms. Vanderhoort submitted letters from other concerned individuals opposed to the project, as well as copy of a Town of Brookhaven local waterway law. Charles Pieroth, a member of the Bayview Beach Association, expressed concern that the deteriorated catwalk at the site may have affected water depths at the site by increasing them.

An issues conference was convened immediately following the public legislative hearing. Only the Department Staff and the Applicant participated, as no one else had filed for party status. The reasons for the Department Staff s denial were discussed. The issues for adjudication were identified as follows:

  • Whether the proposed project meets the standards for issuance of a tidal wetlands permit specified in 6 NYCRR 661.9(b)(1)(i), (ii) and (iii);
  • Whether the proposed project meets the standards for issuance of a protection of waters permit specified in 6 NYCRR 608.8; and
  • Whether the proposed project meets the standards for issuance of a water quality certification pursuant to 6 NYCRR 608.9.

The parties agreed on the record that the above were the issues for adjudication and the ALJ so ruled. There was no appeal of this ruling.

The adjudicatory hearing then proceeded. The following witnesses testified on behalf of the Applicant: Ellen Stein, the Applicant in this matter; Edward Stein, the Applicant's spouse; and Charles J. Voorhis, George R. Hampson, and Lee L. Weishar, Ph.D., all of whom are environmental consultants retained directly or indirectly by the Applicant.

The following witnesses testified on behalf of the Department Staff: Mary Specht, an area resident; Christfried Arfsten, Marine Resource Specialist, DEC Region 1; Lawrence L. Pasciutti, Senior Fish, Wildlife and Marine Resources Technician, DEC Region 1; and Charles T. Hamilton, Regional Supervisor of Natural Resources, DEC Region 1.

The hearing record closed on or about February 6, 2002, upon receipt of the final sections of the hearing transcript.

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; and

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

6 NYCRR 661.5(b)(15) lists the construction of docks more than four feet in width as a generally compatible use in coastal shoals, bars and flats and littoral zone, for which a permit is required.

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

The Applicant in this matter is Ellen Stein, who resides with her family at 28 Conscience Circle, Setauket, New York 11733. The address is the site of the proposed project. The specific Suffolk County Tax Map designation for the subject property is District 0200, Section 22, Block 01, Lot 05. Ms. Stein acquired the property in 1997. The property is improved by a single family residence, a detached garage and a pool and with a surrounding deck. The property is oriented east to west and along its western border fronts on Conscience Bay for approximately 290 feet.

Approximately 125 feet south of the northern border of the property, there is a 4 foot wide catwalk that runs in an east to west direction. Beginning at a point approximately 25 feet east of the western property line, this catwalk runs out beyond the Stein property, a total of 127 feet into the marsh vegetation encountered in this section of Conscience Bay. The low water line is approximately 100 feet seaward of the end of the catwalk. This catwalk was originally constructed by previous owners of the Stein property prior to the enactment of the Department's tidal wetland regulations, 6 NYCRR Part 661, in 1977. As originally built, this catwalk was 3 feet wide and had a 10 foot by 10 foot square platform at its seaward most end that may have been used solely as an observation platform. The platform no longer exists and the Steins use a ladder at the end of the catwalk to climb down onto the tidal marsh and access their boat. While other dock structures are encountered approximately 700 feet to the north and east in the inlet to the Bay called The Narrows, there are no other catwalks on this section of Conscience Bay, and no other such structures at all for at least three quarters of a mile or more south of the catwalk.

Conscience Bay is located between north latitude 40 degrees 57 and 58 minutes and west longitude 73 degrees 07 and 08 minutes. It is part of the Port Jefferson Harbor complex on the north shore of Long Island. The Bay is bordered on the north and west by Old Field, on the east by Strongs Neck, and to the south by Setauket. From north to south it is approximately 1.5 miles from Old Field to Setauket. From west to east, at its widest part, it is approximately .7 miles across, from Old Field to Strongs Neck. At its northern most extremity, the Bay constricts to a channel approximately 100 yards wide called The Narrows, and through this channel communicates with the waters of Port Jefferson Harbor. Conscience Bay is designated a priority water body by the Department and its waters are classified SA, the highest quality designation possible for a salt water body.

Vegetation on the Applicant's property from just east of the shore's high water line is heavily dominated by phragmites, seaward of which is an area of high marsh grass traversing the width of the property. This high marsh grass grades down to an area of Spartina alterniflora, which terminates 75 feet or more landward of the low water line.

Conscience Bay has been designated a Significant Coastal Fish and Wildlife Habitat by the New York State Department of State. The Bay is a feeding or wintering area for various waterfowl and other birds, including black duck, mallard, scaup, pintail, American wigeon, common goldeneye, bufflehead, red-breasted merganser, canvasback, gull, heron, egret, least tern and common tern.

Seaward of the terminus of the Spartina alterniflora at the site, is an expanse of exposed shoals and tidal mudflats. The composition of the sediments in this area consists mainly of mud, sand and shell hash.

The tidal mudflats at the site are part of one of the largest areas of tidal mudflats on the north shore of Long Island and comprise the largest tidal mudflats in the Port Jefferson Harbor complex.

Tidal mudflats such as this one play an important role as habitats for commercially and recreationally important invertebrates and fishes, as well as feeding sites for migratory birds. They function as sites for the conversion of plant production into animal biomass.

The mudflats at the site are part of a flood plain delta that is created as sediments are carried by swift currents through The Narrows and deposited upon entering the Bay as the current dissipates.

This ongoing delta formation process has created a shoal area at the southern terminus of the delta, adjacent to the Stein property.

Various varieties of submerged aquatic vegetation (SAV) are found in the waters adjacent to the site, including red, green and brown seaweeds (Fucus and rock weed), red beard sponge and sulfur sponge.

These various varieties of SAV provide safe haven and habitat for small fish and photosythetic processes for replenishment of oxygen in the water.

Numerous species of aquatic fauna inhabit the area and the waters seaward of the site. These include rib mussels, razor clams, gemma gemma (a small bivalve), lampus (a marsh snail), nereid (a small polycheate worm),soft shell clams, green crabs, bloodworms, sandworms, snapper and winter flounder.

The area is extensively utilized for recreation including activities such as powerboating, waterskiing, kayaking, swimming, fishing and shellfishing.

The area is also utilized by commercial fisherman. In fact, this is the only tidal mudflat in the Port Jefferson Harbor complex that is open on a year-round basis for fishing and shellfishing.

The Applicant proposes to reconstruct the existing 4 foot by 127 foot catwalk and to construct a 4 foot by 30 foot extension to the catwalk angled in a south westerly direction and parallel to the southern property line of the northern contiguous property owned by the Bayview Beach Association. Seaward from the end of the proposed catwalk extension, a 3 foot by 20 foot aluminum ramp would be installed allowing access to an 8 foot by 10 foot float that would rest on 3 inch by 8 inch stringers attached to pilings at the four corners of the float during periods of low water. The stringers would at all times rest on the sediments of the tidal mudflat. Seaward of this float, four more pilings would be placed to allow the installation of a boat lift. While not indicated in the plans, electric power for the boat lift will be supplied from shore requiring excavation of the tidal marsh seaward of the catwalk extension to bury electric power cable. From the seaward end of the proposed boat lift it is approximately 50 feet to the low water line.

The Steins own a 20 foot Sea Swirl boat with a 115 horsepower outboard motor which they use for recreation such as waterskiing, fishing and touring the nearby waters of Port Jefferson Harbor or the shores of Connecticut, across Long Island Sound. Currently, they moor their boat to a mooring located 150 feet seaward of the end of the existing catwalk. Sometimes they tie the boat to the end of the catwalk. Twice each day, with the low of the tide, the boat rests on the tidal mudflats. There is no dock space available in nearby marinas, and only mooring space is available at Setauket Marina in nearby Setauket Harbor. Marinas in Port Jefferson and Mt. Sinai are 20 or 30 minutes away, respectively. Among the reasons the Steins purchased their property on Conscience Bay was so that they could have access to the water for their boat. The proposed project would make access to their boat from their home more convenient.

Official tidal wetland inventory map number 658-536, prepared by the Department in 1974, shows that the site includes tidal wetlands. Specifically, the wetlands on the site are labeled SM, denoting coastal shoals, bars and flats.

On November 12, 1997, the Department issued the Applicant Permit Number 1-4722-02789/00001. This permit authorized the replacement of the then-existing 3 foot by 127 foot catwalk with a 3 foot by 169 foot catwalk. At the end thereof, a 3 foot by 20 foot ramp would be installed communicating with an 8 foot by 20 foot float secured by four pilings. The application for this permit was submitted to the Department along with the proposed project plan and three photographs of the site. No physical inspection of the site was made by the Department prior to issuance of the permit. The project required the further approval of the U.S. Army Corps of Engineers (ACOE) and the Town of Brookhaven. The ACOE granted approval for the project but the Town did not. The Applicant brought suit against the Town and, as a result of settlement negotiations, agreed to certain modifications of the original project, including angling the catwalk extension away from but parallel to the contiguous property to the north and reducing its length to 30 feet. Also agreed to was a reduction of the size of the float from 8 feet by 20 feet to 8 feet by 10 feet, and the installation of the boat lift. The width of the catwalk and its extension, however, were increased to 4 feet. The court stipulation settling the litigation with the Town was so ordered by the Suffolk County Supreme Court on October 19, 2000. The DEC permit stated that it was to expire November 12, 2000. Pursuant to Paragraph 4 of the General Conditions of the permit, any application to renew the permit was to have been received by the Department 30 days before expiration of the permit, which would have been October 13, 2000. No request to renew or modify was received by October 13, 2000.

On October 29, 2000, the Applicant's consultant, Nelson, Pope & Voorhis, LLC, submitted documentation seeking modification of the original permit by proposing the instant proposed project.

By letter dated November 14, 2000, the Department advised the Applicant's consultant that the current permit had expired and that the instant application to modify would, in fact, be treated as an application for a new permit requiring the submission of an application as well as the necessary documentation. This application and documentation was submitted on or about November 30, 2000, and is the subject of the instant proceeding.

On or about January 20, 1999, during the time the original permit was effective, Department Staff visited the site and determined that the catwalk had been resurfaced and widened to 4 feet in contravention of the terms of the 1997 permit. A Notice of Violation was issued to the Applicant alleging this fact and the matter was subsequently disposed of upon the Applicant's execution of an Order on Consent and payment of a civil penalty.

Paragraph 2 of the General Conditions of the 1997 permit provides:

The Department reserves the right to modify, suspend or revoke this permit when:

a) the scope of the permitted activity is exceeded
or a violation of any condition of the permit or
provisions of the ECL and pertinent regulations is found;

b) the permit was obtained by misrepresentation or failure to disclose relevant facts;

c) new material information is discovered; or

d) environmental conditions, relevant technology, or applicable law or regulation have materially changed since the permit was issued.

24) The official tidal wetland inventory map number 658-536, at a scale of 1 inch equals 200 feet, shows that the Spartina alterniflora at the site was thriving seaward of the existing catwalk for more than 75 feet at the time the aerial photograph, upon which the map is based, was taken in 1974.

25) The plans submitted by the Applicant in 1997 and confirmed by photographs taken at the time show that the seaward limit of the Spartina alterniflora was about 60 feet from the end of the existing catwalk.

26) The record indicates that there are exposed tidal mudflat areas 35 to 40 feet seaward of the existing catwalk.

27) An on-site inspection by the Department for the purposes of the instant application shows that the amount of Spartina alterniflora seaward of the existing catwalk has significantly diminished when compared to the 1997 photographs, as much as 60 to 75 percent.

28) Shading from the catwalk has significantly reduced the growth of Spartina alterniflora beneath it and this condition will only be exacerbated by the proposed catwalk extension and ramp.

29) The intertidal marsh at the site, which includes Spartina alterniflora, is important in diminishing the effects of floods, hurricanes and storms and in cleansing the ecosystem and removing silt from the water.

30) The proposed project will degrade and diminish the size of the intertidal marsh at the site, decreasing the marsh's ability to lessen the effects of floods, hurricanes and storms and to aid in cleansing the ecosystem and removing silt from the water.

31) The formation of the flood plain delta adjacent to the site is an ongoing and dynamic process.

32) The proposed float and boat lift will be the only structures on this otherwise untouched tidal mudflat.

33) The presence of the float, with its stringers resting on the tidal mudflat, as well as the boat lift and pilings will have a significant impact on the flood plain delta formation in this area, inalterably disrupting and affecting the natural deposition of sediments.

34) Increased and altered sedimentation rates from placing the stringers on the tidal mudflat, the placement of pilings and the installation of a boat lift, will affect lower species, such as invertebrates and shellfish, by decreasing the ability of these animals to survive in the area of the structures, thus depleting their numbers. This impact to the lower food chain will affect species higher on the food chain, such as finfish and waterfowl, depriving them of necessary nutrition.

35) Mooring buoys are commonly used on Conscience Bay.

36) Mooring fields are near the Applicant's site, one, in fact, being 100 yards to the south of the site.

37) Private and public marinas are nearby which offer docking as well as mooring fields.

DISCUSSION

Importance and Uniqueness of the Flood Plain Delta and Preservation of the Spartina alterniflora

As the record makes clear, the flood plain delta adjacent to the Applicant's site is of primary importance to the area's ecosystem, providing wildlife habitat for numerous species as well as a fertile location supporting a variety of submerged aquatic vegetation, invertebrates and shellfish. But as is also clear from the record, this area is in a constant natural flux due to the unceasing deposition of sediments coming in from The Narrows, the basis of the flood plain delta formation process in this area. That this process is an ongoing and, indeed, expanding one, is borne out by the fact that the seaward limit of the Spartina alterniflora in this area has receded over the years. A comparison of the 1997 proposal and its photographs with the current application verified in the field through an on-site inspection, shows that in this short time there has been a material change in the environmental conditions at the site. The tidal wetland regulations are intended to implement the policy of the State which is to preserve and protect tidal wetlands and prevent their despoliation. Clearly, this policy presumes that natural tidal wetland forming processes will themselves be protected when consistent with that policy. An unnecessary human interference with this process is not contemplated by the Tidal Wetlands Act. In addition, human action, such as that proposed, will further and unduly impact the habitat of the Spartina alterniflora which is already threatened in this area by the natural flood plain delta formation process.

Reasonableness of and Necessity for the Proposed Project

The record indicates that the proposed project is neither reasonable nor necessary in light of reasonable alternatives available to the Applicant. In the first instance, the Applicant already enjoys an advantage not enjoyed by neighboring property owners, in that she has access to the tidal mudflats adjacent to her residence via a catwalk built before the enactment of 6 NYCRR Part 661 in 1977. It is not likely that the Department would issue a permit for such a structure to any contiguous property owner. Second, she can continue to utilize a mooring buoy at her property. The temporary impact of a 20 foot boat resting on the mudflats twice each day with each low tide on a purely seasonal basis is far less than the impacts associated with a permanent ramp, float and boat lift, along with their associated pilings. Third, there are nearby marinas and mooring fields to which the Applicant has access.

CONCLUSIONS

The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(i) in that it will have an undue adverse impact on the present and potential value of the tidal wetland at the site for marine food production, wildlife habitat, flood and hurricane storm control, cleansing ecosystems, absorption of silt and organic material, recreation and open space appreciation. In particular, the structure will unduly interfere with sediment deposition occurring as part of the natural on-going flood plain delta formation process at the site, which will in turn affect marine food production. Moreover, the proposed structure will unduly impact the survival of Spartina alterniflora at the site, which is already stressed by natural processes, but which is essential to flood and hurricane storm control, as well as cleansing the ecosystem and removing of silt from the water.

2) The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(iii) in that it is not reasonable and necessary, taking into account the reasonable alternatives that exist to the proposed project. These alternatives include the continued utilization of a mooring buoy or the utilization of a nearby commercial marina.

3) With regard to the standards for a protection of waters permit pursuant to 6 NYCRR 608.8, as stated above, the project as proposed is not reasonable and necessary and therefore does not comply with Section 608.8(a). The project as proposed will cause unnecessary damage to the natural resources of the State, specifically the aquatic environment and therefore does not comport with Section 608.8(c).

4) With regard to the standards for granting water quality certification under 6 NYCRR 608.9, since the proposal does not meet the tidal wetlands and protection of waters permit requirements, it fails to be in compliance with State statutes, regulations and criteria otherwise applicable to activities needing water quality certification as required by Section 608.9(a)(6). Accordingly, the certification required pursuant to 6 NYCRR 608.9 cannot be made.

RECOMMENDATION

I recommend that the application be denied.

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