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United States Coast Guard - Ruling, November 1, 2000

Ruling, November 1, 2000

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Intent to
Revoke Flood Control Land Use
Permits of

UNITED STATES COAST GUARD
AUXILIARY, FLOTILLA 2-2, INC.,

Pursuant to Environmental Conservation Law Article 16
and Title 6 of the New York Code of Rules and Regulations, Part 501.

RULING ON ISSUES
AND PARTY STATUS

[November 1, 2000]

NYSDEC Permits

CR 69-15 and 70-6

Summary

This proceeding addresses the bases asserted by Staff of the Department of Environmental Conservation ("Staff"; the "Department") to revoke two flood control land permits issued to the United States Coast Guard Auxiliary Flotilla 2-2, Inc., ("USCGA" or "Permittee") to use two parcels of state-owned land in Ithaca, New York. The Department Staff plans to transfer the parcels to the City of Ithaca in furtherance of the City's waterfront development plans.

The Administrative Law Judge ("ALJ") finds that three of the six grounds for revocation cited by Staff require adjudication. These issues are: does the placement of docks by USCGA in the flood control channel impair the operation of the flood control project?; did the USCGA install docks in a manner that violated the terms of its permits?; and, did the USCGA deny access to the parcels in a manner that violated the terms of its permits?

In this ruling, the ALJ grants party status to both Interveners, Marina Realty of Ithaca, LLC. ("MRI") and the City of Ithaca. MRI identified the third adjudicable issue identified above regarding public access, which was subsequently adopted by the Department Staff. Both MRI and the City allege that the Permittee's docks encroach upon their nearby properties.

More importantly, the ALJ finds that if the Department Staff intends to sell the parcels to the City following revocation of permits, this permit revocation is unnecessary. Instead, pursuant to Environmental Conservation Law ("ECL") §16-0107(17), the Commissioner, may sell the two parcels to the City of Ithaca. Sale of the two parcels would extinguish the permits, as a matter of law.

Introduction

In the late 1960's, the New York State Conservation Department(1) acquired title to a strip of land in Ithaca, New York for the purposes of constructing a flood control channel to reduce flooding problems in Cayuga Inlet. Among the many parcels acquired were the two parcels at issue here. One parcel, known as Parcel 271, was excavated for construction of a flood control channel so that much of this parcel currently is beneath the water in the flood control channel and the remainder lies along the bank of the flood control channel. The second parcel, known as Parcel 270, is now entirely above water and contains a building of approximately 2,000 square feet. According to Department Staff, at the time of acquisition, only Parcel 271 was required for flood control purposes, but Parcel 270 also was acquired to speed acquisition of Parcel 271.

The Conservation Department, and subsequently, the Department, have continued to maintain title to the two parcels at the request of the New York State Department of Transportation ("DOT"). The two parcels were a possible site for DOT bridge construction. In recent years, DOT has completed construction of two new bridges in the area, on other parcels of land. Therefore, Staff asserts, Parcels 270 and 271 are no longer potential DOT bridge sites and the Department's retention of the two parcels is no longer necessary. Most of the other lands along and beneath the flood control channel are not owned in fee by the Department, rather Department maintains an easement on these lands for maintenance of the flood control channel.

At the time the flood control channel was constructed and USCGA's permits were issued, the area surrounding Parcels 270 and 271 was considered a blighted industrial area. It is only in recent years that the City of Ithaca has developed plans to revitalize this portion of its waterfront. In keeping with these plans, the City sold land near Parcels 270 and 271 to MRI for construction of a restaurant. Department Staff now seeks to transfer ownership of Parcels 270 and 271 to the City of Ithaca, but, retain an easement in Parcels 270 and 271 for the purpose of maintaining the flood control channel.

- The USCGA Permits

Following construction of the flood control channel, in 1969 and in 1970, the USCGA (a not-for-profit corporation and part of the civilian volunteer arm of the United States Coast Guard) applied for and received two permits from the state. In 1969, the first permit, CR 69-15, was issued by the Conservation Department. In 1970, the second permit, 70-6, was issued by the Department. While it is unclear whether the second permit replaced the first, these permits entitle USCGA to use parcels 270 and 271, to establish a floating dock in the flood control channel between May and November of each year, and to use the building. The permits contain no expiration date and USCGA pays no fee for the use of these parcels.

USCGA uses the building on Parcel 270 as its headquarters. The building contains the radios necessary to conduct USCGA's search and rescue missions on Cayuga Lake, a classroom for members of the public to receive boater education, storage space for safety equipment and educational materials, and a large garage bay suitable for winter storage of the USCGA's official vessel. USCGA has used the grounds for parking and winter storage of vessels.

For many years, USCGA has installed seasonal floating docks in the flood control channel. The docks have been used for the official USCGA vessel, for private vessels of members of the USCGA (which are used from time to time for official USCGA purposes, such as the search and rescue missions), and for the conduct of boat safety inspections by USCGA personnel (offered to members of the public at no charge). Since in or about 1970, the USCGA has maintained, repaired and upgraded parcels 270 and 271. These upgrades have included a new roof and a new heating system for the building, placement of new rip rap along the flood control channel (pursuant to the appropriate permits), and the general day-to-day maintenance of the facility and grounds.

Although USCGA has used the parcels and placed the docks in the channel since issuance of the permits, recently, a dispute arose as to whether the length of the dockage structure authorized by the permits exceeds the boundaries of Parcel 271. Staff alleges, and USCGA does not dispute, that these docks have extended onto the neighboring parcels, which are presently owned by the City of Ithaca and MRI. Until this year, the City did not object to the encroachment. However, during the year 2000 season, the City sued USCGA regarding encroachment of the docks on the City property. This suit resulted in a New York State Supreme Court decision authorizing the City to remove approximately two-thirds of the USCGA's docks. During the year 2000 season, the City removed the docks pursuant to the Court's determination.

The Permit Revocation Proceeding

Department Staff served the Permittee with a Notice of Intent to Revoke the Permits by letter dated April 28, 2000 (Kenneth Lynch, Regional Director of Department's Region 7, to Cora Banks, Flotilla Commander of USCGA). Director Lynch provided notice of intent to revoke of the permits effective June 1, 2000. This letter was followed by a letter of June 27, 2000 that expanded upon the initial notice of intent to revoke.

In the two letters, Department Staff identified five bases for revoking USCGA's permits, summarized below:

  1. The Decision to Dispose of the Property ­ Department Staff cites its decision to sell the parcels to the City as a change in environmental conditions that authorizes the revocation of the permits. The Department Staff asserts that retaining title to the two parcels is no longer necessary for flood control purposes.
  2. Placement of Docks in Flood Control Channel Increases

Risk of Flooding ­ Department Staff cites a recent determination by the Regional Flood Control Engineer that the placement of docks in the flood control channel adjacent to the USCGA's facility is not conducive to adequate flood control management because during times of flooding, the dock will impair water flow should a tree or other snag become entangled with the dock.

The Change in Law ­ Department Staff cites the enactment of ECL §16-0107(13) and the promulgation of 6 NYCRR 501.8 as a further ground for revocation. These provisions were enacted following the issuance of the USCGA permits and require all flood control permits to specify expiration dates so that Department Staff may regularly evaluate all permits for use of flood control lands.

Use of the Parcels for Income Generation Constitutes a Violation of Permit Terms ­ Department Staff alleges that USCGA has used Parcels 270 and 271 to generate income for the organization and that such use violates state law and thus the terms of the permits.

Extension of Dock Beyond that Authorized in the Permit Violation of Permit Terms ­ Department Staff alleges that USCGA's docks extended beyond the boundaries of Parcel 271 and encroached on lands owned by the City of Ithaca and MRI, thus violating the terms of USCGA's permit.

In response to Director Lynch's letters, the USCGA, through its counsel, requested this permit revocation hearing. USCGA asserts three issues in opposing Department Staff's notice of intent to revoke:

  1. That Department Staff's proposal to surplus the land and sell it for a nominal cost to the City of Ithaca is illegal.
  2. That because there is no termination date in the permits, the permits remain in effect in perpetuity unless a permit term is violated.
  3. That the implementation of ECL §16-0107(13) and 6 NYCRR 501.8 cannot have a retroactive effect on the permits and modify the terms of the permit.

- The Legislative Hearing

A Notice of Public Hearing was duly published in the Department's Environmental Notice Bulletin of July 26, 2000 and the Ithaca Journal on July 26, 2000. The advertised legislative hearing was held at the USCGA's headquarters at 508 Old Taughannock Boulevard, Ithaca, New York on August 22, 2000 (located on Parcel 270). Approximately 85 people were in attendance; 38 individuals gave oral presentations. The deadline for receipt of written statements was August 29, 2000 and 14 statements have been received.

At the legislative hearing, both the Department Staff and counsel for USCGA spoke. In addition, representatives of both parties seeking intervener status, the City of Ithaca and MRI, spoke in favor of the permit revocation. The remaining speakers were roughly evenly divided between those approving of the proposed revocation and those in opposition.

- The Issues Conference

An issues conference was convened at 10:00 a.m., on August 23, 2000 at the same location. Both parties, the Department Staff and USCGA, attended, as did representatives of the two Interveners, the City of Ithaca and MRI.

The Department Staff was represented by William Gallagher, Assistant Regional Attorney, from the Department's Region 7 Office. Regional Flood Control Engineer Henry Carroll also attended on behalf of Department Staff.

USCGA was represented by the law firm of Holmberg, Galbraith, Holmberg, Galbraith, Van Houten & Miller, appearing by Dirk A. Galbraith, Esq., and Diane L. Galbraith, Esq.

The City of Ithaca, was represented by Patricia Dunn, Assistant City Attorney for the City of Ithaca. City Director of Economic Development Douglas McDonald also attended on behalf of the City of Ithaca.

Marina Reality of Ithaca, LLC., was represented by Stephen Flash, Esq.

At the conclusion of the August 23, 2000 Issues conference session, a briefing schedule was set. Reply briefs were timely submitted by all four Issues conference participants. The Issues conference record closed with the receipt of these briefs on September 12, 2000.

- USCGA's Position

The USCGA disputes each ground cited by Department Staff for permit revocation. In sum, USCGA argues that Department Staff has not identified any basis to justify revocation of the permits. USCGA does not dispute Department Staff's authority to convey the parcels. However, USCGA contends that if the Department transfers Parcels 270 and 271 to the City (or to another entity) that, as a matter of law, the USGCA's permits to use the land would remain in effect; that the USCGA's permits 'travel with the land'.

Initially, USCGA asserted that Staff's proposed method of transferring the land to the City of Ithaca is illegal. However, during the issues conference, the USCGA and other issues conference participants agreed that review of 'the proposed method of sale' is outside the scope of this permit revocation hearing. Therefore, this issue is deemed withdrawn.

The Petitions for Party Status

Both the City and MRI have petitioned for party status in this proceeding, and each supports the Department Staff's position that the permits should be revoked. In addition to the five grounds cited by Department Staff, MRI has proposed an additional ground for revocation.

- Marina Realty of Ithaca, LLC.

MRI is the developer of a new restaurant on its Inlet Island property. This property is near parcels 270 and 271, separated only by a City of Ithaca parcel. MRI asserts that the Permittee's docks have encroached upon MRI's property, and that it has an interest in the continued implementation of the waterfront development plans for the area and in this permit revocation hearing.

MRI proposes an additional ground for revocation of the USCGA's permits:

Denial of Public Use of the Docks Constitutes a Violation of USCGA's Permit ­ MRI contends that USCGA has violated the permits by denying public use of the docks. More specifically, MRI asserts that the USCGA members use the entire dock for their own personal vessels, thus precluding use by the public as required by the permits.

- The City of Ithaca

The City did not propose any additional grounds for permit revocation. Nonetheless, as the lead government agency for waterfront development in the area and the potential future owner of parcels 270 and 271, the City of Ithaca has petitioned for party status in this matter. The City asserts that the Permittee's docks also have encroached upon its property. The City maintains it has an interest in the continued implementation of the waterfront development plans for the area surrounding and including the two parcels. The City disputes USCGA's legal argument that the permits 'run with the land' and states that the USCGA's use of the parcels for income generation is contrary to the City's plans for redevelopment of the area.

Discussion

Pursuant to 6 NYCRR 624.4(c)(1), an issue is adjudicable if it relates to a matter cited by the Department Staff as a basis to deny the permit and is contested by the applicant, or it is proposed by a potential party and is both substantive and significant.

- Permits and Property Rights

The Department Staff, the City and MRI assert that upon transfer or sale of the property, the permits are extinguished. The USCGA does not dispute that the Department can transfer or sell the property, but contends that the permits confer interests that travel with the land.

An environmental permit is not a contract between Department Staff and USCGA, nor is it real property. The permits issued to USCGA by Department Staff are "licenses" as the term is defined in the State Administrative Procedures Act ("SAPA"). SAPA §102(4). A license "does not confer a vested or absolute right, but only a personal privilege, to be exercised under the restrictions existing at the time of the issuance of the license, as well as those which may be reasonably imposed thereafter." 13 NY Jur 2d, Bus. & Occ., §2; "[a] license with respect to real property may be defined as a privilege to do one or more acts on land, without having an interest therein. As a general proposition, it is personal to the licensee, is not assignable by him, and is revocable by the licensor." 49 NY Jur 2d, Easements, §208; see, also, Hodes v Axelrod, 84 AD2d 895, 444 NYS2d 769 (3rd Dept., 1981) [A permit is a personal privilege subject to reasonable restrictions and may be revoked by the issuing authority.] and Lap v Axelrod, 95 AD2d 457, 467 NYS2d 920 (3rd Dept., 1983).

The caselaw cited by USCGA in support of its position is not relevant or is given an overbroad reading by USCGA. For example, in LeMay v General Electric Co., 114 Misc2d 445, 451 NYS2d 990 (1982), licensees who were authorized to use state lands along the Champlain Canal brought suit seeking a prescriptive easement across property of General Electric Co., for access to the state land. The Court granted summary judgment for General Electric Co., holding that the plaintiff-licensees of the State of New York under Canal Law Article 10 do not hold even so much a right in property as would a tenant. LeMay at 448. The Court's determination in LeMay is adverse to USCGA's position in the present matter.

In conclusion, the USCGA's claim that its permits constitute a vested property right in Parcels 270 and 271, is without merit and must be rejected.

- Departmental Authority to Sell Parcels 270 and 271

ECL §16-0107(17) provides that the Commissioner "may determine whether any property taken for any of the purposes connected with flood control projects pursuant to this section may be leased, sold or exchanged on terms beneficial to the state."

USCGA cites the general rule of statutory construction that precludes the retroactive operation of a statute. See, 2 NY Jur 2d, Administrative Law §188 (1988). USCGA contends that ECL Article 16 was not enacted until 1978, but the USCGA's permits were issued in 1969 and 1970. Therefore, USCGA asserts, as a matter of law, that ECL §16-0107(17) does not apply to the USCGA's permits due to the general rule against retroactive operation of statutes.

However, New York State's flood control program was created in 1936 in response to federal legislation making funds available to states that created flood control programs. Chapter 862 of the Laws of 1936. The flood control program has been in existence continuously since that time. In 1969 and 1970, the identical statutory language of ECL §16-0107(17), above referenced, could be found in the New York Unconsolidated Laws, at §1307(15). In 1977, the Legislature moved this statutory provision from the Unconsolidated Laws to ECL Article 3. Then, in 1978, the Legislature moved this statutory provision into ECL Article 16, where it remains.

Therefore, the statutory provision authorizing state sale or exchange flood control lands on terms beneficial to the state was in existence at the time the USCGA's permits were issued and has been effective ever since. Thus, issuance of the USCGA permits does not pre-date enactment of the operative language of ECL §16-0107(17). The Department Staff is empowered to transfer Parcels 270 and 271 pursuant to ECL §16-0107(17).

Further, as discussed above, USCGA has no property right in Parcels 270 and 271. Upon the Department's transfer of title to another entity, the USCGA's two Departmental permits would be extinguished as a matter of law.

- Standards for Permit Revocation

There are two standards for permit revocation in 6 NYCRR Part 501: 1) that any condition of the permit has been, is being or is about to be violated; and, 2) that the permitted activity will impair the operation of any flood control work. (6 NYCRR 501.6). USCGA has argued that Part 501 should not apply to the permits because the regulations were adopted subsequent to the issuance of the permits and there is no indication that the regulations were intended to be retroactive. However, these two standards for permit revocation also are contained in both USCGA permits(2). Accordingly, the revocation standards are applicable in the instant case as permit conditions, if not as regulatory provisions. Consequently, the USCGA's argument regarding retroactive effect of 6 NYCRR Part 501 need not be reached.

The Department Staff's Bases for Revocation

The Decision to Sell the Parcels Created a Change in Environmental Conditions

The USCGA asserts that no change in environmental conditions has occurred and that the physical characteristics of the parcels have not changed significantly in thirty years. Instead, USCGA asserts that what has changed is the plans of Department - - to sell the parcels, and possibly, the Department's policy regarding placement of the docks.

A 'change in environmental conditions' is a basis for permit revocation of Departmental permits governed by the Uniform Procedures Act. ECL Article 70 and 6 NYCRR Part 621. But, the Uniform Procedures Act is not applicable to ECL Article 16 matters. See, ECL §70-0107. Under the standards for revocation contained in the permits (and in 6 NYCRR 501.6), Staff's decision to sell the two parcels is not a valid ground for permit revocation. Nor is Staff's decision to sell the parcels a violation of any permit condition or an impairment to flood control. Thus, this basis for revocation is rejected as a matter of law and does not require adjudication.

The Placement of Docks May Hamper Flood Control

This is a possible basis for permit revocation pursuant to the permit terms addressing revocation (and 6 NYCRR 501.6). The danger of floating trees and other snags becoming entangled with USCGA's docks could threaten to impair the operation of the flood control project. Factual issues exist, including the likelihood of such snags occurring during the months of the year that the USCGA is authorized to place its docks in the flood control channel. Thus, this issue requires adjudication.

The Change in Law

The two permits do not identify a 'change in law' as a basis for permit revocation (nor is this a basis in 6 NYCRR 501.6). USCGA argues that, as a matter of law, the subsequently enacted law (or promulgated regulation) applies only to flood control land use permits issued after the change in law (or regulation) became effective.

As discussed above, the only grounds for revoking these two permits are found in the permits themselves (or in 6 NYCRR 501.6). This proposed basis for revocation must be rejected and does not require adjudication.

Use of Parcels 270 and 271 for Income Generating Purposes

This is a possible basis for permit revocation pursuant to the permit terms addressing revocation (and 6 NYCRR 501.6). Staff contends that the individual USCGA members have enriched themselves through the two permits issued to USCGA. Thereby, Staff alleges impermissible action(s) of a not-for-profit corporation. USCGA responds that no permit condition mentions income generating activities, nor is any law applicable to the alleged activities. Consequently, USCGA argues that it did not violate the terms and conditions of the permits.

Staff has not identified any statutory provision, regulatory provision or permit term prohibiting the use of these parcels for income generation. Moreover, Staff's reliance on New York Constitutional provisions prohibiting gifts and loans of state property to private entities is misplaced. Such an allegation is properly addressed by the New York Department of Taxation and Finance or Department of State (or the federal Internal Revenue Service). This is not a basis for permit revocation, nor is it an adjudicable issue.

Encroachment of the Docks on to Adjacent Land

This is a possible basis for permit revocation pursuant to the permit terms addressing revocation (and 6 NYCRR 501.6). USCGA responds that placement of the docks was in accordance with the terms and conditions of the two permits. Further, USCGA asserts that they have placed the docks in exactly the same location and configuration for the last thirty years, without complaint. In view of this lengthy history of use, USCGA concludes that any Departmental action to conform the length of the docks to the Parcel 270 and 271 property boundaries, should not result in permit revocation.

A factual dispute exists regarding this alleged violation, including whether USCGA has placed the docks consistent with the terms of the permits. Thus, this is the second issue requiring adjudication.

Denial of Public Access to the Docks

This last basis for revocation was raised by MRI as a proposed adjudicable issue in its petition for party status. MRI alleges that USCGA has denied public access to the two parcels and the docks placed on and adjacent to the parcels. This issue was not identified by Department Staff in its letters setting forth the Staff's bases for permit revocation. But, Staff adopted this additional basis for permit revocation during the issues conference (Staff's "sixth" basis for revocation).

USCGA has objected to Staff asserting this sixth basis during the issues conference, because the issue was not identified by Department Staff in either of its two letters. USCGA asserts that 6 NYCRR 624.4(c)(8) precludes the consideration of issues at an adjudicatory hearing that have not been raised by Department Staff as a basis for revocation.

6 NYCRR 624.4(c)(8) [Standards for Adjudicable Issues] provides that in a Department-initiated revocation proceeding:

[t]he only issues that may be adjudicated are those related to the basis for modification, suspension or revocation cited in the department's notice to the permittee. Whenever such issues are proposed for adjudication, the determination to require adjudication will be made according to the standards set forth in paragraph 624.4(c)(1) of [6 NYCRR Part 624].

This regulatory provision assures that prior to any adjudicatory hearing, a permittee is provided with notice of all Staff's bases for revocation (and requires that any determination of adjudication is consistent with the standards for adjudicable issues set forth in 6 NYCRR 624.4[c][1]). In this case, Staff's identification of grounds for revocation are modified by Staff's adoption during the issues conference of MRI's proposed adjudicable issue. The Permittee is provided with due notice of Staff's bases for revocation as a result of the issues conference process and this ruling. Therefore, the Permittee will be afforded a full opportunity to prepare for the adjudicatory hearing, knowing which issues will be adjudicated as grounds for permit revocation. Staff's adoption of a sixth basis for revocation does not violate 6 NYCRR 624.4(c)(8).

This sixth basis for revocation is a possible basis for permit revocation pursuant to the permit terms addressing revocation (and 6 NYCRR 501.6). A factual dispute exists regarding this issue concerning public access and use to the parcels and the docks. Therefore, this is an adjudicable issue.

The MRI Petition

MRI has presented a substantive and significant issue for adjudication that has been adopted by Department Staff as a basis for permit revocation, Staff's sixth basis for revocation. MRI has demonstrated that it can make a meaningful contribution to the hearing. Therefore, MRI is granted party status in this matter.

The City of Ithaca Petition

The City of Ithaca owns property adjacent to Parcels 270 and 271, and has asserted that the Permittee's docks have encroached upon City property. Additionally, the City has demonstrated its interest in the development of the parcels in furtherance of local waterfront plans and the environmental consequences of the revocation or continuance of USCGA's permit. As an adjacent municipal landowner, the City of Ithaca possesses a unique and necessary perspective on the matters at issue. The City can provide important information regarding the grounds cited by Department Staff for permit revocation and can make a meaningful contribution to the record. Accordingly, the City of Ithaca is granted party status.

Conclusion

The Department Staff has stated its intention to sell these two parcels to the City of Ithaca in furtherance of the City's waterfront development plans. If the goal of revoking these permits is to transfer the parcels to the City of Ithaca, the Department Staff may proceed more directly. Department Staff should simply sell the properties pursuant to ECL §16-0107(17). Upon transfer, USCGA's permits would be terminated as a matter of law, thus rendering moot this permit revocation hearing.

Finally, nothing in this decision should be construed as a commentary on the merits of USCGA's need for continued waterfront access and adequate facilities. It is clear from the comments of the Department Staff, the City of Ithaca, MRI, and the many citizens who spoke at the Legislative hearing that the USCGA provides valuable and important services to citizens of the City of Ithaca and the larger community.

It would be regrettable if the interested governmental representatives allow the USCGA to be diminished in its capacity to provide their valuable and important public services or are altogether precluded from providing those services, in the name of urban redevelopment. I urge all of the parties in this proceeding to continue their earnest efforts to find suitable new facilities where the USCGA may continue its long tradition of public service.

Appeals

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed with the NYSDEC Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

However, I provide that any appeals of this ruling must be sent to Commissioner John P. Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 3:00 p.m. on November 9, 2000. Any responses to duly filed appeals must be received before 3:00 p.m. on November 16, 2000. The parties shall ensure that transmittal of all papers is made to me and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. Please ensure that I receive two copies of any appeal that is filed. No electronic submittals, including submittals by telecopier, will be allowed or accepted. Appeals should address these rulings, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to NYSDEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.

Albany, New York
November 1, 2000

/s/
Kevin J. Casutto
Administrative Law Judge

TO: Dirk A. Galbraith, Esq.
Diane L. Galbraith, Esq.
Holmberg, Galbraith, Holmberg,
Galbraith, Van Houten & Miller
200 East Buffalo Street
Ithaca, NY 14851-6599

William Gallagher, Esq.
Assistant Regional Attorney
NYSDEC ­ Region 7
615 Erie Blvd, West
Syracuse, NY 13204-2400

Patricia Dunn, Esq.
Assistant City Attorney
Office of the City Attorney
Ithaca City Hall
108 East Green Street
Suite 403
Ithaca, NY 14850

Stephen Flash, Esq. Marina Realty of Ithaca 202 East State Street Suite 401 Ithaca, NY 14850

1. The functions of the Conservation Department were subsequently transferred to the Department of Environmental Conservation in 1970.

2. Specifically, the authority to revoke the permits if USCGA violates any permit term is listed as condition #9 in the 1969 permit and condition #10 in the 1970 permit. The requirement that the permitted activity not impair the operation of the flood control works is listed as condition #13 in the 1969 permit and condition #14 in the 1970 permit.

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