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Tubridy, John and Virginia - Order, December 31, 1998

Order, December 31, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Article 15
and Article 25 of the Environmental Conservation
Law ("ECL") and Parts 608 and 661 of Title 6 of the
Official Compilation of Codes, Rules and Regulations
of the State of New York by

ORDER

DEC Case No.
R2-0253-97-11

JOHN and VIRGINIA TUBRIDY
Respondents

WHEREAS:

  1. Pursuant to Notices of Hearing and Complaints dated March 17, 1998 and July 2, 1998, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ"), on September 3, 1998 at the Department's Region 2 Office located in Long Island City, New York. The Department's Region 2 Staff appeared by Udo Drescher, Esq., Assistant Regional Attorney. The Respondents both appeared by John Tubridy.
  2. Based on ALJ DuBois's attached hearing report, which is accepted and made a part hereof, it appears that:
    1. The record in this matter establishes that the Respondents constructed or caused construction of a bulkhead and fill in and adjacent to a regulated tidal wetland without having a tidal wetlands permit from the Department for these activities. A portion of the bulkhead and fill were also placed below the mean high water level in navigable waters of the state without a permit having been issued by the Department pursuant to ECL Article 15. This construction has adversely affected the function of the wetland at the site.
    2. In view of the unusual water supply and sewage disposal situation at the site of the violations, an opportunity should be allowed for review of a permit application for construction at the site, which would include an evaluation of ways to ensure that the water and sewer lines at the Respondents' house are functional while causing the minimum disruption to the protected wetland and its functions.

NOW THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. The Respondents are assessed a civil penalty in the amount of Ten Thousand Dollars ($10,000), of which Five Thousand Dollars (5,000) shall be due and payable to the Department within sixty (60) days from the date of service of this Order upon the Respondents, and the remaining Five Thousand Dollars (5,000) shall be suspended contingent upon the Respondents' compliance with paragraphs II through IV below.
  2. Within ninety (90) days after service of a conformed copy of this Order upon the Respondents, the Respondents may file an application for a tidal wetlands permit and a protection of water permit with the Department for the bulkhead and fill, or a modification of these to minimize the effect on the wetland; the bulkhead and fill may remain in place pending the Department's final determination with respect to this application.
  3. If the Respondents do not file a permit application in a timely manner, the bulkhead and fill shall be removed within one hundred and twenty (120) days after service of a conformed copy of this Order upon the Respondents.
  4. The bulkhead and the fill shall be removed by the Respondents within 45 days of denial if the Department's final decision is to deny the application, or shall be modified as provided in the permit if a modified project is approved.
  5. All communications between the Respondents and the Department concerning this Order shall be made to the Department's Region 2 Director, NYS Department of Environmental Conservation Region 2, 47-40 21st Street, Long Island City, New York 11101.
  6. The provisions, terms and conditions of this Order shall bind the Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Albany, New York
December 31, 1998

To: John Tubridy
102-00 Shorefront Parkway
Rockaway, New York 11695

Virginia Tubridy
102-00 Shorefront Parkway
Rockaway, New York 11695

Udo Drescher, Esq.
Assistant Regional Attorney
NYSDEC Region 2
47-40 21st Street
Long Island City, New York 11101

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

In the Matter

- of -

Alleged Violations of Articles 15 and 25 of the
Environmental Conservation Law and Parts 608
and 661 of Title 6 of the Official Compilation of
Codes, Rules and regulations of the State of
New York by

JOHN and VIRGINIA TUBRIDY
35 Van Brunt Road

Broad Channel, New York,

RESPONDENTS

Case No. R2-0253-97-11

HEARING REPORT

by

/s/
Susan J. DuBois
Administrative Law Judge

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, an administrative enforcement hearing was held to consider allegations by the New York State Department of Environmental Conservation (the "Department") against John and Virginia Tubridy (the "Respondents"), 102-00 Shorefront Parkway, Rockaway, New York 11695. The Department Staff alleged that the Respondents had constructed a bulkhead and placed fill in and adjacent to a regulated tidal wetland and in the navigable waters of the State of New York without having a permit for this work, at their property located at 35 Van Brunt Road, Broad Channel, New York.

The Respondents were served with a Notice of Hearing and Complaint by certified mail, return receipt requested, on or about March 19, 1998 to John Tubridy and on or about July 3, 1998 to Virginia Tubridy. The hearing took place on September 3, 1998 at the Department's Region 2 Office in Long Island City, New York, before Susan J. DuBois, Administrative Law Judge.

The Department was represented by Udo Drescher, Esq., Assistant Regional Attorney, DEC Region 2. The Respondents were represented by Mr. Tubridy.

The Department Staff called as witnesses Dawn McReynolds, Conservation Biologist and Tamara Greco, Environmental Conservation Program Aide, both of the Department's Region 2 Office. Mr. Tubridy testified on behalf of the Respondents.

The transcript of the hearing was received by the Office of Hearings and Mediation Services on October 13, 1998 and the hearing record was closed on that date.

The Charges and Relief Sought

The Department Staff alleged that the Respondents had constructed a bulkhead and placed fill in and adjacent to a regulated tidal wetland without having a permit for this work. The Department Staff also alleged that the fill had been placed in navigable waters of the State of New York without a permit. The fill was for a parking spot at the Respondents' house in Broad Channel.

The Department Staff sought a civil penalty of $12,000 and an order requiring removal of the bulkhead and the fill. The penalty request was based on $4,000 for each of two violations of Environmental Conservation Law ("ECL") Article 25 (Tidal Wetlands) and $2,000 for each of two violations of ECL Article 15 (Protection of Waters).

The Answer

The Respondents acknowledged that the bulkhead and the fill had been installed without a permit, but stated that the Department Staff was aware that the parking area would be built. The Respondents also stated that the fill was necessary in order to keep the house's water and sewer pipes from freezing and that the fill was in the adjacent area rather than below mean low water.

FINDINGS OF FACT

  1. John Tubridy and Virginia Tubridy (the "Respondents") are owners of property at 35 Van Brunt Road, Broad Channel, New York (the "site"). They purchased this property in 1984 from the City of New York. Broad Channel is located in Queens County and is surrounded by Jamaica Bay and the wetlands in Jamaica Bay.
  2. When the Respondents purchased the property, a house was located on it. This house was subsequently destroyed in a storm. On November 12, 1993, the Department of Environmental Conservation (the "Department") issued to the Respondents a permit for in-kind replacement of the house on existing piles. The permit was issued pursuant to Environmental Conservation Law ("ECL") Article 15, Title 5 (Protection of Waters) and ECL Article 25 (Tidal Wetlands). The house is built on piles over the water and access to the house is by a wooden catwalk.
  3. The site is located in and adjacent to regulated tidal wetlands. The wetland consists partly of littoral zone (where the water is between one foot and six feet deep at low tide) and partly of coastal shoals and flats. The landward boundary of the wetland is the high water line on the narrow beach which is between the house and Van Brunt Road.
  4. Part of the 35 Van Brunt Road property is in the navigable waters of the state. Boats navigate on the waters of Jamaica Bay and a jet ski rental establishment is located adjacent to the property.
  5. During construction at the site in 1996, the Department issued a warning letter to Mr. Tubridy regarding wood debris which was in the water and regarding the location of stockpiled material. Mr. Tubridy removed the wood from the water and disposed of it. In 1996, the area of the alleged violations contained some pilings connected by horizontal beams, with some boards across the beams, but no bulkhead nor fill.
  6. On November 19, 1997, Dawn McReynolds and Tamara Greco of the Department's Region 2 office visited the site to inspect the permitted work. As of that date, a bulkhead had been constructed at the site, enclosing an approximately rectangular area which extended out from the street, and fill had been placed within the bulkhead. The filled area was approximately 33 feet by 10 feet.
  7. The bulkhead and the fill are located partly in the wetland and partly in the adjacent area. The bulkhead and the fill are also located partly below the mean high water line. The land surface immediately adjacent to a portion of the bulkhead is inundated by the water of Jamaica Bay at times when the water is at or below the high tide elevation for a normal tide (not a spring tide). The water is in contact with the side of a portion of the bulkhead under these conditions. The appearance of the soil at the site and the location of intertidal vegetation at the site also demonstrate that the bulkhead and fill are party below mean low water.
  8. The bulkhead and fill were built or caused to be built by the Respondents in order to provide space for a driveway for the house and in order to bury the water and sewer pipes for the house.
  9. The plans which were included in the 1993 DEC permit for replacement of the house do not include a bulkhead, fill or a driveway at the location where these were built. Neither the permit's description of the project nor the permit conditions mention these features. The Respondents did not obtain a permit modification nor a new permit from the DEC for these.
  10. The area where the fill was placed is habitat for a variety of plants and animals including softshell clams, ribbed mussels, polychaete worms, horseshoe crabs, mud crabs, snails, gulls, cormorants and macro algae, and potentially for low marsh cordgrass (Spartina alterniflora). These plants and animals are part of the food chain of Jamaica Bay. Jamaica Bay is a very large tidal wetland area which has been designated as a significant coastal fish and wildlife area by the New York State Department of State and as a critical environmental area(1). The environmental importance of Jamaica Bay has also been recognized by the U.S. Fish and Wildlife Service and by the City of New York. Filling at the site eliminated the value of the filled area for habitat and for marine food production. The wetland and adjacent area on the site as they existed prior to construction of the bulkhead and placement of the fill also allowed for more dissipation of wave action than occurs now that these structures are in place; the structures have reduced the value of the wetland for flood control.
  11. The New York City zoning regulations applicable at the site require one off-street parking space. There is, however, a provision for waiver of this requirement. Mr. Tubridy was not familiar with the waiver provision and the Respondents had not applied for a waiver.
  12. An additional purpose of the fill was to bury the sewer and water pipes of the house in order to protect them from freezing. The house is located over the water and there is only a limited area of the property that is above mean high water. Technology exists to protect pipes from freezing if they are exposed to the air but this technology would not work for pipes that are in an area which is exposed to the rise and fall of the tides and which alternates between being under water and being exposed to the air. The house on the Respondents' site was originally a summer residence, which had a water connection but no sewer, and in which the water was turned off in the winter. Prior to the mid-1980's when municipal sewers were installed, waste water from the houses on Broad Cannel went directly into the water of the bay and an unidentified number of residences still discharge to the bay. There are winterized houses on piles that have potable water supply lines that go through the bay water, in which the residents keep their water running constantly in the winter to keep it from freezing.

DISCUSSION

The location of the mean high water line was in dispute at the hearing. There are three depictions of a mean high water line or a high water line that are shown on exhibits, as well as testimony by witnesses for the Department Staff and photographs taken by them and by Mr. Tubridy. The drawing which was included as part of the permit (Exhibit 5) shows a line labeled as mean high water line which is at approximately the waterward end of the fill. At the hearing, Ms. McReynolds (of the Department's Region 2 office) drew on Exhibit 5 a line which she labeled as mean high water line, based on her observations at the site. This line is approximately 23 feet landward of the other line. There is also a line labeled "H.W.L. April 28, 1993" which is shown on a survey of the site and nearby areas, prepared by a professional land surveyor. Although this line is a high water line, there is no indication of whether it was intended as showing the mean high water line or as showing the high water line at the time the surveyor was at the site. The surveyor did not testify. It is also possible that the topography has changed, by erosion or by construction activity, between 1993 and the time of the photographs, which were taken in 1996 through 1998.

It is undisputed that a significant portion of the bulkhead was at a place where it was in direct contact with tidal water of the bay at times when the water was at or below high tide level, during an approximately average tide. Although the line drawn by Ms. McReynolds is a sketch and cannot be taken as an exact line, the testimony and exhibits support a finding that at least a portion of the bulkhead and fill was constructed in a location that is below mean high water. There was no indication that the Department Staff's observations were taken during a time when storms might have caused the water level to be unusually high. One of the photographs taken by Mr. Tubridy shows the area where fill was later placed and shows water of the bay covering a portion of that area.

The Respondents disputed the time of day at which Ms. McReynolds and Ms. Greco were at the site on November 19, 1997. Ms. McReynolds and Ms. Greco testified that they were there at high tide, at approximately 11:30 A.M.. High tide at the site on that date was at approximately 11:56 A.M.. Mr. Tubridy contested the testimony of the Department Staff witnesses regarding the time they were there, and he testified that they were there between 8:00 A.M. and 9:00 A.M. Even if Mr. Tubridy's recollection of the time were more accurate, it would not demonstrate that the fill was above high tide. If the photographs taken by the Department Staff on that date had been taken several hours before high tide, rather than at high tide, they would indicate that the mean high water line was even farther landward than depicted by Ms. McReynolds.

The Respondents argued that the Department Staff was aware that the bulkhead and fill would be built since, while discussing the 1996 warning letter, Mr. Tubridy had told an employee of the Department that he would stockpile building materials in the driveway. There is no indication, however, that the employee to whom he was speaking interpreted this as being a driveway he was about to build as opposed to the driveway of the neighboring lot. Even if the first of these interpretations were the understanding during the disussion, it still would not have authorized constuction of the bulkhead and fill without a permit.

As part of the relief, the Department Staff seeks an order requiring the Respondents to remove the bulkhead and the fill. Although this could restore the wetlands functions of the filled area, and although there was no evidence that the act of removing the fill would harm the environment, the evidence does indicate that the fill is currently allowing the Respondents' water and sewer pipes to function. The necessity of the fill for this purpose, and alternative methods of achieving this purpose, have not been evaluated in the context of a permit application. The house is permitted to be at the location where it is being reconstructed, and the environmental impacts of potential sewer problems and of wasting water need to be taken into account. The Department Staff did not contest the Respondents' testimony about potable water use or about the activity of untreated sewage disposal directly into bay water at Broad Channel, nor offer any testimony about alternative ways of keeping the sewer and water pipes from freezing.

The standards for issuance of tidal wetlands permits for regulated activites in wetlands include evaluating whether the activity is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity. For activities that the tidal wetlands regulations list as "Presumptively incompatible use - - permit required," the applicant has the burden of overcoming the presumption of incompatibility (6 NYCRR Section 661.9(b)). This is not a total prohibition of these activities and, based on the unusual water and sewer situation at the site, there is a possibility that the Respondents might be able to overcome this presumption even though Mr. McReynolds testified that she did not expect that the Department would have issued a permit for the bulkhead and the fill. This hearing report recommends that the Respondents be allowed a specified length of time within which to apply for a permit for the bulkhead and the fill.

The standards for issuance of an Article 15 protection waters permit involve similar consideration of whether the project is reasonable and necessary and of the impacts of the project on public health, safety and welfare and on the environment (see 6 NYCRR Section 608.8).

Despite the above recommendation regarding a permit application, this report also recommends that a civil penalty be imposed. Mr. Tubridy was aware of the Department's permit requirements for work at the site but the Respondents did not obtain a permit or a permit modification for the bulkhead and the fill.

CONCLUSIONS

  1. Environmental Conservation Law Section 25-0401 and 6 NYCRR Section 661.8 prohibit persons from conducting regulated activities, including erection of structures and placement of fill, within or immediately adjacent to inventoried tidal wetlands without having obtained a permit to do so from the Department. 6 NYCRR Section 661.5 (b)(29) identifies construction of bulkheads in coastal shoals, bars and flats (SM areas) and in tidal wetland adjacent areas (AA) as "generally compatible use -- permit required." 6 NYCRR 661.5(b)(30) identifies filling in coastal shoals, bars and flats as "presumptively incompatible use - - permit required" and filling in tidal wetlands adjacent areas as "generally compatible use - - permit required."
  2. The Respondents violated ECL Article 25 and 6 NYCRR Part 661 by constructing a bulkhead and placing fill in and adjacent to an inventoried tidal wetland without having a permit for these activities. Construction of the bulkhead and placement of the fill each constitute a separate violation of the tidal wetlands statutory and regulatory provisions.
  3. ECL Article 15, Title 5 states, in part, that: "No person...shall excavate or place fill below the mean high water level in any of the navigable waters of the state, or in marshes, estuaries, tidal marshes and wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state and that are inundated at mean high water level or tide, 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... or any other 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..." (ECL Section 15-0505).
  4. The Respondents violated ECL Article 15 and 6 NYCRR Part 608 by placing fill in the navigable waters of the state and in wetlands adjacent and contiguous to navigable waters of the state without having a permit from the Department to do so. Placement of the fill, which was contained by the bulkhead, constitutes one violation of these statutory and regulatory provisions.
  5. ECL Section 71-2503(a) provides, in part, that any person who violates any provision of ECL Article 25 (Tidal Wetlands) shall be liable to the people of the state for a civil penalty not to exceed ten thousand dollars for every such violation, to be assessed, after a hearing or opportunity to be heard, by the commissioner.
  6. ECL Section 71-2503(c) provides, in part, that following a hearing, the commissioner shall have power to direct the violator to cease and desist from violating the act and to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation, insofar as that is possible within a reasonable time and under the supervision of the commissioner.
  7. ECL Section 71-1107 provides, in part, that a violation of ECL Article 15, Title 5 is punishable by a civil penalty of not more than five thousand dollars.

RECOMMENDATION

I recommend that an order be issued which:

  • imposes on the Respondents a penalty of $4,000 for each of two violations of ECL Article 25 and $2,000 for one violation of ECL Article 15, for a total penalty of $10,000, half of which would be suspended contingent upon the Respondents complying with the additional requirements below;
  • provides that, within 90 days after service of a conformed copy of the order upon the Respondents, the Respondents may file an application for a tidal wetland permit and a protection of water permit with the Department for the bulkhead and the fill (or a modification of these to minimize the effect on the wetland), and that the bulkhead and fill may remain in place pending the Department's determination with respect to this application;
  • requires that if the Respondents do not file a permit application in a timely manner, the bulkhead and fill shall be removed within 120 days after service of a conformed copy of the order; and
  • requires that the bulkhead and fill be removed by the Respondents if the Department's final determination is to deny the application, or shall be modified as provided in the permit if a modified project is approved.

1 "Critical environmental area," as defined in the regulations governing the State Environmental Quality Review process, means a specific geographic area designated by a state or local agency, having exceptional or unique environmental characteristics (6 NYCRR 617.2(i)).

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